BASHIR A. MUJAHID, J.--- This judgment will dispose of Criminal Appeal No,425 of 1993, Criminal Revision No,344 of 1993 and Murder Reference No,187 of 1993 being outcome of the same judgment.
2. The appellants Noor Elahi, Muhammad Asif and Muhammad Sharif alongwith their acquitted co- accused were tried under section 302/324/109/34, P.P.C. For committing the murder of Altaf Hussain and were convicted by Additional Sessions Judge. Okara, and sentenced as under:- Under section 302(b). P,P.C. Noor Elahi is punished with death and Asir and Muhammad Sharif punished for life imprisonment, as Ta'zir, Muhammad Asif and Muhammad Sharif' were extended the benefit of section 382-B, Cr.P.C,
3. The brief facts of the ease are that E.I.R, No,I76 of 1991, dated 4=6=1991 Exh,P,1, was got registered at the instance of Muhammad Hassan with Police Station War, Okara, recorded by Muhammad Ashiq, S.H.O, P.W,18 stating therein that he was resident of Chak No,22/CD. In the year 19$$, the complainant, his brother Altaf Hussain alongwith six other persons were ehallaned in the murder ease of wife of Sadiq son of Fazil Din, resident of the same village, The Use was later on compromised but the heirs of the deemed bore grudge in their heart. On same day at about 10/11=00 a.m., the complainant with his brother Altaf Hussain (deceased) were present in their lands and were busy in their lands and to take rest sat on the western "Watt" ofKilla No,12, under the shadow of trees. Abbas and Muhammad Bashir son of Mirza were also present at the distance of about four Kanals grazing their cattle when from the village side three persons namely Noon l lnhi alias Kala son of Muhammad Sadiq armed with ,12 bore gun, double barrel, Muhammad Asif alias Achha son of Muhammad Sadiq armed with .12 bore single-barrel, and Muhammad Sharif son of Mahboob Alam armed with carbine, arrived at the spot riding motorcycle. Noon Elahi asked Altaf Hussain, brother of the complainant, that he will take revenge that day for the murder of his mother, on which Muhammad Sharif fired with his earbin which hit Altaf Hussain on right thigh.
Muhammad Asif fired with his gun which hit Altaf Hussain on right forearm, Noor Elahi fired with his gun which hit Altaf on right side of the chest. He (the complainant) tried to run when Noor Elahi fired at him which hit on his left arm. Altaf Hussain fell on the ground. Abbas brother of the complainant and Bashir Ahmad witnessed the occurrence. On their hue and cry, the accused persons while firing managed to run away riding the motorcycle. Altaf Hussain was being taken to the village on cot and he succumbed to the injuries in the way. Muhammad All son of Abdul Sattar, Mohabbat Ali son of Mehr Din, caste Jat, resident of Chak No,61/L met the complainant on the way to village and told that short ago they were present in the "Baithak" of Sadiq Mallah in Chak No,22/GD when Sadiq and Muhammad Shafi sons of Fazal Din, Mushtaq son of Bilal Dogar were also present there and they had given the weapons to the abovenamed three accused and had asked to take revenge of their mother and 'Phuphi' of Sharif and kill Altaf Hussain and should not come back without murdering the said Altaf Hussain.
4. After the registration of the case, the Investigating Officer Muhammad Ashiq, P.W.18 arrived in Chak No,22/GD, took into possession the dead body of Altaf Hussain, prepared the injury statement, Exh.P.K. And inquest report, Exh.P.L. And despatched the dead body for post-mortem examination.
Then the investigating Officer inspected the place of occurrence, prepared the inspection notes, took into possession the blood-stained earth from the spot vide recovery memo. Exh.P.E. And also took into possession two crime empties P.3 and P.4 vide recovery memo. Exh.P.F. The exhibited memos. Were attested by P.W .5 Muhammad Khalil and Tariq Riaz.
5. The post-mortem on the dead body was conducted by Dr. Muhammad Saeed Sayal, M.O., D.H.Q.
Hospital, Okara, P.W.2, who found the following injuries on the dead body:--
(1) (a) An oval fire-arm wound of entrance with blackening around it six in number each measuring 1 c.m. x 1 c.m. Covering an area 13 c.m. x 2 c.m. On outer middle of right chest 10 c.m.
Below armpit.
(b) A lacerated wound of exit measuring 1-1/2 c.m. x 1 c.m. On back middle of chest 1 c.m. Right to midline 20 c.m. Above hip point.
(2) (a) A lacerated fire-arm wound of entrance measuring 1 c.m. x 1 c.m. On back of right arm 6 c.m. Above right elbow.
(b) An oval shape fire-arm wound of exit 3/4 x 3/4 c.m. On front lower right arm 8 c.m. Above elbow joint.
(3) (a) An oval fire-arm wound of entrance with blackening around it in an area 19 c.m. x 10 c.m. On back middle of right thigh six in numbers, each measuring 3/4 x 3/4 c.m. 5 c.m. Above knee joint and in this area there was a burn area 2 c.m. x 1-1/2 c.m.
(b) Two lacerated wounds measuring 2-1/2 c.m. x 2 c.m. On anterior lateral side of right thigh in middle.
In the opinion of the doctor cause of death was fire-arm injury No,1, causing damage to right lung and abdominal organ and vessels leading to profuse bleeding` and shock. All injuries were ante- mortem and caused by fire-arm and was sufficient in ordinary course of nature to cause death.
6. On 10-6-1991, the same doctor also medically examined Muhammad Hassan son of Habib Khan, P.W.13, and found the following injury on his person:--- "A slit slippery wound measuring 4-1/2 c.m. x 1/2 c.m. On back middle of left fore-arm. There was scorching of skin and singing of hair all around the wound."
The injury was declared simple, and was caused within a duration of one week and according to him the injury might have been caused by the fire-arm.
7. On 3-7-1991, Muhammad Ashiq, Investigating Officer arrested Noor Elahi appellant, who while in police custody led to the recovery of .12 bore gun double barrel, P.1 alongwith eight live cartridges P.2/1-8 from his residential Kotha which were taken into possession vide recovery memo. Exh.P.A. On 19-7-1991, he arrested Muhammad Asif, appellant, who while in police custody, on the same day, led to the recovery of .12 bore single barrel gun P.5 and five live cartridges P.6/1-5 which were taken into possession vide recovery memo. Exh.P.G. Muhammad Sharif, appellant was arrested on 4-9- 1991 by Younus Butt, S.-I., who had gone out of country and his signatures were identified by P.W.18 Muhammad Ashiq, who while in police custody led to the recovery of carbine on 12-9-1991 which was taken into possession vide recovery memo. Exh.P.H. After completion of the investigation, the appellants and their three acquitted co-accused namely, Muhammad Sadiq, Muhammad Shafi and Mushtaq were challaned. The accused denied the allegations and claimed trial.
8. During the trial, the prosecution examined as many as 19 witnesses. Muhammad Hassan, P.W.13 supported the contents of the F.I.R. As a complainant and as an eye-witness while Abbas P.W.14 and Bashir Ahmad, P.W.15 supported the prosecution version as the eye-witnesses. The prosecution also produced the Report of the Chemical Examiner Exh.P.N., Report of Serologist Exh.P.O., Report of the Forensic Science Laboratory Exh.P.P., Exh.P.Q. And Exh. P.R. And closed the evidence. Statement of accused under section 342, Cr.P.C. Was also recorded and he replied the relevant question No,7 as under:--- "Ans. It was an unseen and unwitnessed occurrence. The deceased had many enemies and had litigation with many persons. We have forgiven him and withdrawn the murder case relating to my mother and consequently the deceased alongwith the co-accused were acquitted in the year 1987. We have, therefore, no enmity with the deceased. The P.Ws. Have deposed due to previous enmity and to support their false version, which was set up after preliminary investigation. During trial the P.Ws. Dishonestly improved their version to bring their evidence in line with the medical evidence. Bashir Ahmad P.W. Is a permanent resident of Chak No,6, Alipur, Tehsil Pattoki, which is at a distance of 50 miles from the spot. The other two witnesses are real brothers of the deceased. All these witnesses deposed falsely."
D.W.1 Amjad Ali, A.S.-I. Was examined in support of defence version. Trial culminated in passing the impugned judgment.
9. The learned counsel for the appellants has argued that the medical evidence does not support the ocular account. As per medical report, the injuries Nos.2 and 3 were the result of one fire shot.
The injury No,2 was on the back of the right arm alleged to have been caused by Muhammad Asif, appellant while the injury on right thigh was attributed by Muhammad Sharif. Both the injuries might have been caused by one person and the result of one fire-arm shot which creates doubt as to who caused the injury out of Muhammad Sharif and Muhammad Asif. The benefit of which should be given to both the appellants. It has been further argued that the presence of the eye- witnesses at the spot is doubtful as all the three witnesses have attributed the seven shots to the appellants and their testimony has been contradicted by the medical evidence, therefore, their statements cannot be relied upon. It has further been argued that Muhammad Bashir, witness was not resident of Chak No,22/GD. He owns land in village Alipur, Tehsil Pattoki. He cultivates land over there and he also exercised his right of vote in Tehsil Pattoki. He has been brought forward to support the false story of the prosecution as nobody from the village came forward. The learned counsel for the appellants has also criticized the injury on the person of Muhammad Hassan, P.W.13 by arguing that this witness (complainant) accompanied the dead body of his brother to the hospital. The dead body was received by him but he never got him medically examined on that day. His injury was not noted by the Investigating Officer at the spot. He never showed the same to the Investigating Officer. He privately got himself examined after one week just to prove his presence at the spot. The opinion of the Dr. Muhammad Saeed Sayal that possibility cannot be overruled that the injury having been caused by friendly hands strengthen the case of the defence to prove that the complainant was not the eye-witness of the occurrence. It is further argued that the motive although alleged in the F.I.R. But it has not been, satisfactorily proved. Even as per the prosecution, the earlier case of murder of mother of the appellant Noor Elahi and Muhammad Asif was compromised years together earlier than the present occurrence there was no immediate cause for commission of this offence by the appellants. Although the motive for the commission of murder is not necessary but if that is alleged by the prosecution, the same should have been proved otherwise adverse inference can be drawn. It is also argued that admittedly Altaf Hussain was not only accused in the case of murder of mother of Noor Elahi but also the complainant who should not have been spared if present there. It is maintained by the learned counsel that the empties taken into possession from the spot only matched with the gun allegedly used by Noor Elahi. The participation of Muhammad Asif and Muhammad Sharif is not proved beyond any reasonable doubt in the offence. The learned counsel has argued that even if it is admitted that the offence has been committed by any of the appellants, then Noor Elahi appellant who was aged only 22 years at the time of commission of offence might have acted on the direction of his father as mentioned in the F.I.R. That the father had asked the appellants to take revenge of the mother of appellants Noor Elahi and Muhammad Asif, and Muhammad Sharif was directed to take revenge of his 'Phuphi' then the case of Noor Elahi is of lessor punishment.
10. The learned counsel appearing for the State has opposed the acceptance of appeal and supported the impugned judgment. Argued that the presence of the witnesses at the spot was natural. It was a broad daylight occurrence. F.I.R. Was prompt. The motive was also established and there was no reason to falsely implicate the appellants in the heinous offence. He also pleaded the case of the complainant, as his learned counsel was not available.
11. We have heard the learned counsel for the parties.
12. The complainant was also injured and was medically examined. The arguments of the learned counsel for the appellants that the complainant did not disclose his injury at the time of post- mortem report of the deceased Altaf Hussain when he accompanied the dead body, has no force.
Considering the injury of minor nature, at that time when his brother was murdered, he might have ignored the same, did not get himself medically examined, but after burial of the real brother and participating in the investigation, he considered it appropriate to get himself medically examined.
The duration of the injury in the opinion of Dr. Muhammad Saeed Sayal, P.W.2 is stated to-be caused within the period of one week, so co-insight with the time of the occurrence. All the three witnesses are consistent in their statements about place of occurrence. The fatal injury attributed to Noor Elahi by the eye-witnesses has been fully corroborated by the medical evidence and also it gets support from the recovery of empties taken into possession from ,the spot which tallied with the gun, got recovered at the instance of Noor Elahi, appellant. The appellant Noor Elahi is aged 22 years and few years ago he might have been of tender age and grudge arose in his heart for taking revenge for the murder of his mother. The time of taking the revenge from the accused, he feels to pick up for the satisfaction of that revenge is for the accused to decide. The guilt of Noor Elahi, appellant has been proved on record by the prosecution by the ocular account, medical evidence, supported by the recovery of incriminating articles beyond any reasonable doubt, and the Forensic Science Laboratory Report further strengthens the same.
13. The case of Muhammad Asif and Muhammad Sharif is distinguishable. The injury No,3 on the person of deceased Altaf Hussain has been attributed to Muhammad Asif, appellant. Injuries Nos.2 and 3 are, according to medical evidence, might have been the result of one shot which creates doubt for the involvement of Muhammad Asif in the same manner as of Muhammad Sharif, appellant. Although he has been attributed specific injury but in presence of the Forensic Science Laboratory Report, the two empties recovered from the spot tallied with the gun used by Noor Elahi, appellant and the injuries of the two shots have also been found on the person of deceased. It makes the case of Muhammad Sharif also doubtful. He might have been roped in by the complainant party being real brother of the main culprit like three other accused close to the main appellant to put the net very wide to involve all the family members as it is the usual practice in our society. We conclude that case of the prosecution against Muhammad Asif and Muhammad Sharif appellants regarding their involvement in the commission of offence is doubtful and benefit of doubt is being extended in their favour.
14. In nutshell the appeal of Noor Elahi has no force and the same is dismissed. His conviction and sentence is maintained. The appeal to the extent of Muhammad Arif and Muhammad Sharif appellants is accepted. Their conviction and sentence is set aside and they are acquitted of the charge against them. They are on bail and are absolved ,of all liabilities of the bond.
15. For the abovesaid reasons, Criminal Revision No,344 of 1993 stands dismissed.
16. Murder reference is answered in affirmative. Death confirmed.