' This judgment will dispose of Criminal Appeal No,139 of 1998, directed against the judgment passed by the learned Additional Sessions Judge, Bahawalnagar, on 1-10-1998, whereby he convicted Wazir Ali, Bashir Ahmad and Manzoor Ahmad accused under section 302-B read with section 34, P.P.C., for causing Qatl-e-Amad of Abid All deceased and sentenced them to undergo life imprisonment each with fine of Rs,20,000 each as compensation to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C., was granted to them.
2. The occurrence took place in this case at 9-30 a.m. On 15-1-1997 in the area of Mauza Nawasar, at a distance of 24 k.m. From Police Station Donga Bonga, District Bahawalnagar while the matter was reported by Sajid Mahmood, complainant at 11-30 a.m. On the same day and the formal F.I.R., Exh.P.B. Was recorded by Manzoor Ahmad A.S.I., on the same day.
3. The facts in brief, of the prosecution case were that at about 9-30 a.m. On 15-1-1997, complainant along with Muhammad Ramzan, Haji Faiz Muhammad were present at the Adda Noorsar, when brother of the complainant Abid Ali came there for purchasing vegetable. When he was going towards the shop of Farooq Ahmad, he was intercepted by Wazir Ali alias Pappu, Bashir Ahmad and Manzoor Ahmad Khushi Muhammad a real maternal uncle of Manzoor Ahmad was also standing beside them. When Abid Ali brother of the complainant was passing from near them, Wazir Ali Bashir Ahmad and Manzoor Ahmad caught hold of him Wazir and Bashir both started injuring Abid with Chhurri while Manzoor Ahmad picked up a soti and inflicted injuries on the head and shoulder of Abid Ali. However, Khushi Muhammad remained standing there. The complainant along with Muhammad Ramzan and Haji Faiz rushed to rescue Abid Ali but the assailants ran away and Abid Ali by falling on the ground succumbed to the injuries. Motive for the occurrence was that one year prior Abid Ali and his father Sher Muhamamd had quarreled with Khushi Muhammad and gave him beating. That incident cultured a grudge in the four accused and to take revenge the same they made a conspiracy and killed Abid Ali.
4. After registration of the formal Manzoor Ahmad A.S.I. (P.W.4) proceeded to the place of occurrence, prepared the inquest report Exh.P.A./3, and accused blood-stained earth from the place of occurrence and took into possession vide memo. Exh.P.D/1. On 25-1-1997, he arrested all the three accused while on 27-1-1997 Wazir Ali led to the recovery of blood-stained chhurri P.4 which was taken into possession vide memo. Exh.P.F./1. On the same day Muhmmad Bashir while in custody led to the recovery of blood-stained chhurri P.5 which was taken into possession vide memo. Exh.P.G. Sota P.6 was got recovered by Manzoor Ahamd which was taken into possession vide memo. Exh.P.H. On 27-1-1997, A.S.I., arrested Khushi Muhammad accused but during investigation he was found to be innocent. After completion of investigation, all the four accused were challaned to face the trial.
5. Prosecution in order to prove its case has produced as many as 9 witnesses, out of whom Sajid Mahmood P.W.6 and Muhammad Ramzan P.W.7 were eyewitnesses while the Doctor who conducted the post-mortem examination on the dead body of Abid Ali was examined as P.W.2.
Thereafter, statements of the appellants were recorded under section 342, Cr.P.C. Reports of the Chemical Examiner are Exh.P.J. And Exh.P.K. While that of the Serologist are Exh.P.L. And Exh.P.M.
6. Learned counsel for the appellants submits that the prosecution has failed to prove the motive in this case because the motive, it any, laid with Khushi Muhammad acquitted co-accused of the appellant. Khushi Muhammad during the course of investigation was found innocent and he was placed in column No,2 of the challan. Learned counsel further submits that the version put forward by Wazir Ali in his statement under section 342, Cr.P.C., is more plausible and convincing one.
Learned counsel further adds that prosecution has falsely implicated his real brother Bashir Ahmad and his old father Manzoor Ahmad along with Khushi Muhammad who has been acquitted by the learned Trial Court.
7. Learned counsel further submits that occurrence had taken place in front of the shop of the present appellant. He adds that it is not believable that appellants would already be ready to give injuries to the deceased because they had no knowledge that deceased was passing through their shops at the time of occurrence. Learned counsel submits that both the eye-witnesses namely Sajid Mahmood who is real brother of the deceased while Muhammad Ramzan the other eyewitness is real uncle of the deceased and no independent witness has been produced by the prosecution to prove its case, although the occurrence had taken place in 'Bazar' where other shops were also situated. Learned counsel further submits that it is not possible that at a phattya (URDU TEXT) three persons would sit or they were required there for the sale of vegetables. He adds that as far as recovery of knife from the appellants Muhammad Bashir and Wazir Ali is concerned, both the recovery witnesses against them are Sajid Mahmood, complainant, real brother of the deceased and Haji Faiz Muhammad, who is also relative of the deceased and no independent witness has been produced in this regard. That these type of knives which have allegedly been recovered are available in the Bazar and specially at a shop of vegetable sellers. Learned counsel further submits that occurrence in this case, if any, has taken place only between the deceased and Wazir Ali appellant.
7. On the other hand, learned A.A.-G. Submits that parties are closely related to each other, that it was a broad daylight occurrence. That appellants are named in the F.I.R., specific roles are attributed to them, that mere relationship of witnesses with the deceased is no criteria to discard the testimony of prosecution witnesses. The prosecution has proved its case through ocular account corroborated by the medical evidence and recovery of knife from Wazir Ali and Bashir Ahmad appellants. Learned A.A.-G., supports the judgment of the learned Trial Court vehemently.
8. I have heard the learned counsel for the parties and have also gone through the record available on the file of the instant case. The occurrence had taken place just in front of the shop of the appellants. The motive in this case according to the F.I.R., was that a year prior to the occurrence a quarrel took place between Khushi Muhammad the maternal uncle of Wazir Ali appellant with Abid Ali deceased and the present appellants in order to take revenge of that quarrel committed the murder of the deceased. In my view this motive is not plausible for the reason that Khushi Muhammad who was allegedly present at the spot did not cause any injury to the deceased, that. He remained standing at the time of occurrence but did not take part in the same. He was declared innocent by the police and was placed in column No,2 of the challan and was also acquitted by the Trial Court. Even during this intervening period no untoward incident took place between Khushi Muhammad and Abid Ali deceased. The matter of quarrel taking place a year before between Khushi Muhammad and Abid Ali was never reported to the police. No independent witness has been produced by the prosecution, except the statements of Sajid Ali and Muhammad Ramzan who were real brother and uncle of the deceased respectively, so I am not going to believe the motive part of the story and so disbelieve the same.
9. Now come the question of presence of eye-witnesses namely Sajid Mahmood and Muhammad Ramzan at the spot. Sajid Mahmood is real brother of the deceased while Muhammad Ramzan is reel uncle of the deceased. Had they been present at the spot, they must have either intervened in the fight to save the life of Abid Ali or they must have also been injured by the P.Ws. The occurrence had taken place in the bazar at 9-30 a.m., not a single independent person from the Bazar has either been cited or produced by the prosecution to prove its case against the appellants. It is also not believable that Manzoor Ahmad an old man alongwith his two sons would be dealing in vegetables because it was a small village three persons are not required to be present at such a small shop of vegetables for selling the same. Manzoor Ahmad appellant is father of Bashir Ahmad and Wazir Ali injuries Nos.5, 6 and 9 according to the post-mortem examination are attributed to him. The Doctor who conducted the post-mortem examination had admitted that these injuries can be received by the deceased while falling on the ground. The benefit of that must go to Manzoor Ahmad appellant and possibility of his false implication, being the father of Wazir Ali and Bashir Ahmad cannot be ruled out. In this view of the matter, as far as Manzoor Ahmad appellant is concerned appeal filed by him is accepted. He is behind the bars, he shall be released forthwith if not required in any other case.
10. Now I take up the case of Wazir Ali and Bashir Ahmad. Wazir Ali replied to question No, 9 in his statement under section 342, Cr.P.C. Question No,9 and his reply is reproduced as under:--- Q.No,9. Have you anything else to say?
Ans. I am innocent. During the days of occurrence I was working at Lahore as labourer. My wife Shehnaz Begum is real Khala of Abid Ali deceased and Sajid Mehmood complainant. About three months before the occurrence, the marriage of Abid Ali was solemnized. I, my father Manzoor Ahmad, my brother Bashir Ahmad and my other family members did not attend and participate his marriage ceremony. My wife Mst. Shehnaz, however, went to the house of Abid Ali and participated in his marriage although, I had forbidden my wife Mst. Shehnaz from going and participating in his marriage. I was annoyed with my wife Mst. Shehnaz because she had attended that marriage of Abid Ali against my wishes. On this account differences arose between me and my wife Mst. Shehnaz Begum and after about one month of the marriage of Abid Ali, Mst. Shehnaz left my house and went to her parents. She was living in the house of her parents for the last two months before the occurrence. Abid Ali deceased who was siding with his Khala Mst. Shehnaz Begum was annoyed against me as to why I had turned out Mst. Shehnaz Begum from my house.
About 2/3 days before the occurrence, I had come to my village as it was the month of Ramzan. On the day of occurrence my father Manzoor Ahmad was present on his shop (phatta) for selling vegetables. I was also sitting with him on his shop. Abid Ali deceased while armed with soti came there and started abusing me and my father and snubbed us as to why, I had turned out Mst.
Shehnaz Begum from my house. Abid Ali caused injuries with soti to me and my father and continued abusing my father and me. I apprehended grievous hurt at the hands of Abid Ali and on account of provocation due to abuses given by the deceased to my old father, I lost my senses and picked churri which was lying on the shop of my father for cutting vegetables and caused injuries to Abid Ali deceased on account of apprehension of grievous injury under grave and sudden provocation.
' Abid Ali deceased was an aggressor and he had come to our place of business duly armed with a Soti and had initiated the occurrence. My father Manzoor Ahmad who is an old man did not cause any injury to the deceased. My brother Bashir. Ahmad was not present at the spot. The police had picked the stick left by Abid Ali deceased and Chhurri from the spot. The complainant party is an influential party and with the assistance of political influence got involved all the male members of my family in this case falsely.
11. A bare perusal of statement of Wazir Ali would show that real sister of Abid Ali deceased was married with Wazir Ali appellant. Three months prior to the present occurrence Abid Ali was married but nobody attended the marriage from the side of the appellant except Shehnaz Bibi, although she was asked by the appellants and his co-accused not to attend the marriage of. Abid Ali due to that relations between the parties became strained. Shehnaz Bibi left the house of Wazir Ali appellant two months prior to the occurrence and went to the house of her parents. Abid deceased who was maternal nephew of Shehnaz Bibi became annoyed with Wazir Ali and took the side of Mst. Shehnaz Bibi. The story put forward by the appellant Wazir Ali during the trial in his statement under section 342, Cr.P.C., if put in juxtaposition with the story put forward by the prosecution, the story of the appellant seems to be more plausible and natural and confidence inspiring. It seems that on the day of occurrence Abid Ali came at the shop of Wazir Ali and an altercation took place and Wazir Ali after taking 'churri' from the shop of his father inflicted six injuries on the deceased, three of them landed on his chest. I think that the fight was only between Abid Ali and Wazir Ali deceased and the eyewitnesses were not present at the spot, if one goes through the post- mortem report, in column of death no time and date has been given therein. As far as Bashir Ahmad appellant is concerned, it seems that being the real brother of Wazir Ali possibility of his false implication cannot be ruled out. As far as recovery of knife at the pointation of Bashir Ahmad is. Concerned in the instant case, Sajid Mahmood, complainant and one Faiz Muhammad a close relative of deceased Abid Ali are the witnesses. No independent witness has been produced in this regard by the prosecution. Haji Faiz Muhmmad was given up while Sajid Mahmood was examined on this point. The recovery was affected allegedly from the house of Manzoor Ahmad appellant which was owned jointly by Manzoor Ahmad and other appellants. No witness from the locality has been produced/cited or joined at the time of recovery. Giving the benefit of doubt to Bashir Ahmad, I accept the appeal to his extent and acquit him. He shall be released forthwith if he is not required in any other .Case.
12. As far Wazir Ali is concerned, he has also admitted his guilt during the course of trial. He has caused numerous injuries, no leniency can be shown to him so conviction and sentence awarded to Wazir Ali appellant is concerned that is maintained and the appeal filed by him is hereby dismissed but benefit of section 482-B, Cr.P.C., is granted to him.