' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Appellants Ashiq Hussain and Manzoor Hussain alongwith Muhammad Bakhsh were tried in Case F.I.R. No,56 of 1997, dated 44-1997 registered under sections 302/324/34 read with section 109, P.P.C. At Police Station Kot Mithan, for the murder of Ehsan Ullah by the learned Sessions Judge, Rajanpur who vide judgment, dated 19-8-1998 while acquitting Muhammad Bakhsh, convicted both the appellants under sections 302(b)/34, P.P.C. And sentenced Ashiq Hussain appellant to death and Manzoor Hussain appellant to imprisonment for life. Both the appellants were also directed to pay Rs,30,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, or in default whereof to undergo further S.I. For six months. Benefit of section 382-B, Cr.P.C. Was also given to Manzoor Hussain appellant.
2. Challenging their conviction and sentence both the appellants filed Criminal Appeal No,286 of 1998, whereas the learned trial Court has made a reference (Murder Reference 372 of 1998) under section 374, Cr.P.C. Seeking confirmation of sentence of death awarded to the appellant-Ashiq Hussain. All these matters are being disposed of together by this consolidated judgment.
3. Case F.I.R. No,56 of 1997 Exh.P.B. Was registered at Police Station Kot Mithan upon the statement of Mirza Hafeez Ullah P.W.3 with regard to the murder of his brother Ehsan Ullah taking place in the area of village Kot Mithan about one kilometer away from the police station.
4. Succinctly the facts of the case as contained in the F.I.R. Exh.P.B. Are that the land of complainant was situated in Kot Mtighalan besides in Bait Mughal and Kotla Syed Khan. He had a residential house in Kot Mithan also. Oftenly the complainant resided at Kot Mithan to look after his land. On 3- 4-1997 Mirza Muhammad Shafqat, brother of the complainant and Muhammad Tariq son of Haji Abdul Ghaffar Khan resident of Kotla Mughlan, cousin of the complainant and Rasool Bakhsh son of Kalu resident of Dhora Hajana, who was his Kardar came at Kot Mithan. They stayed there at night.
In the morning, on the day or occurrence, after taking breakfast, complainant alongwith Rasool Bakhsh abovesaid, 'went to Mauza Bait Mughal to the land of complainant on his motorcycle where Ehsan Ullah, brother of the complainant and Abdul Aziz son of Ghulam Nabi Gopang resident of Rakh Mad Maulvi were present. About 5-00 p.m. They took meals and afterwards Ehsan Ullah brother of complainant and Abdul Aziz Gopang on one motorcycle while the complainant and Rasool Bakhsh on the other motorcycle started for Kot Mithan. Motorcycle of Ehsan Ullah, brother of the complainant was ahead of them and motorcycle of complainant was behind him at some distance. About 6-00 p.m., when they reached the land of Ghulam Mustafa Gopang situated in village Kot Mithan after crossing Ganda Koonwan, all of a sudden, Ashiq Hussain appellant armed with .12 bore gun, Manzoor Hussain empty-handed sons of Muhammad Bakhsh and Ghulam Haider son of Nizamoon armed with .12 bore gun all Gopang by caste, residents of Rakh Kot Mithan, who had hidden themselves in the field of Brinjal came in front of motorcycle of Ehsan Ullah, brother of complainant and stopped his motorcycle. Manzoor Hussain caught hold of Abdul Aziz who was sitting behind Ehsan Ullah, in his clasp and brought him down from the motorcycle, Ehsan Ullah also fell down from the motorcycle. Within the view of witnesses Ashiq Hussain appellant fired at Ehsan Ullah, which hit at his back. Manzoor Hussain, appellant in the meantime, snatched licensed revolver of Ehsan Ullah and commanded his co-accused to fire a second shot at Ehsan Ullah. At this moment witnesses tried to intervene but Manzoor Hussain appellant fired four shots towards them but none of them received any injury. Statedly, Ghulam Haider made second fire at Ehsan Ullah which hit him on the right side of chest. Ashiq Hussain appellant also gave butt blow to Ehsan Ullah, hitting him on the head near his right ear. Statedly the butt of the gun was broken. All the accused after causing injuries to Ehsan Ullah while raising Lalkaras and brandishing weapons, decamped from the scene of crime. Manzoor Hussain appellant also took away the licensed revolver of Ehsan Ullah, brother of the complainant with him. Ehsan Ullah succumbed to the injuries at the spot. As narrated in the F.I.R. Accused committed the murder of Ehsan Ullah, on the instigation of Muhammad Bakhsh son of Pari father of Manzoor Hussain and Ashiq Hussain appellant as Muhammad Bakhsh had stated before Bilal son of Allah Bachaya and Abdur Rashid abovementioned in the presence of other persons that they would murder Ehsan Ullah in order to take revenge of his son Nazar Hussain.
5. Motive behind the occurrence was that complainant party had land in Mauza Bait Mughal.
Muhammad Bakhsh etc. Accused got possession of this land on the pretext of land reform. In that connection Ehsan Ullah deceased got registered a case at Police Station Zahir Peer. In the meantime, Nazar Hussain son of Muhammad Bakhsh accused was murdered in District Rahimyar Khan. At this Muhammad Bakhsh got registered a case against Ehsan Ullah deceased levelling allegation of abetment. Statedly Ehsan Ullah was discharged from the case. Due to the grudge the abovementioned accused had murdered brother of complainant with common intention on the abetment of Muhammad Bakhsh accused.
6. On the same day matter was reported to Muhammad Shafi, S.-I. P.W.15 by Mirza Hafeez Ullah P.W.3. He entered formal F.I.R. Exh.P.B. And proceeded to the spot for investigation. After examining the dead body he prepared injury statement Exh.P.D. And inquest report Exh.P.E. And sent the dead body to the mortuary for post-mortem examination. During the spot inspection the Investigating Officer collected blood-stained earth vide memo. Exh.P.F. He also secured two empties of .12 bore gun P.5 and P.6 vide memo. Exh.P.H. He also took into possession four empty cartridges P.1 to P.4 vide memo. Exh.P.G. As well as broken wooden pieces P.7 and P.8 of the butt of gun vide memo.
Exh.P.J. Motor-bike P.9 belonged to the deceased was also taken into possession vide memo.
Exh.P.K. He also prepared rough site plan of the place of occurrence Exh.P.W. As well as recorded the statements of the witnesses under section 161. Cr.P.C. After the post-mortem examination last-worn clothes of the deceased were produced before him which were taken into possession vide memo.
Exh.P.L.
7. This case was also investigated by Saif Ullah, S.-I. P.W.14. On 24-4-1997 he arrested Ashiq Hussain appellant who on 26-4-1997 led to the recovery of .12 bore gun P.15 from his house which was taken into possession vide memo. Exh.P.M. On 29-4-1997 Manzoor Hussain appellant was arrested who on 30-4-1997 led to the recovery of revolver P.16, six bullets P.17/1-6 and a leather cover P.18 which were taken into possession vide memo. Exh.P.N. He also arrested Muhammad Bakhsh accused on 4-5- 1997. After the completion of investigation challan was submitted before the trial Court.
8. Since Ghulam Haider accused was not arrested by the police, the trial Court after complying with legal formalities separated his case under section 512, Cr.P.C. Vide order, dated 26-11-1997.
9. At the trial prosecution produced fifteen witnesses in all to prove the charge against the appellants and their co-accused. Mirza Hafeez Ullah P.W.3 and Abdul Aziz P.W.4 narrated about the ocular account and had supported the prosecution case in verbatim.
10. Post-mortem examination on the dead body of Ehsan Ullah was conducted by Dr. Azhar Hussain P.W.7 who found the following injuries on his person:--
(1) A lacerated fire-arm wound 4-1/2 c.m. x 3 c.m. x going deep into thorax cavity margins inverted.
Semi circular on the back of left side of chest, just near to the vertebra column 5 c.m. Below to the scapular angle.
(2) A lacerated fire-arm wound 1 c.m. x 1/2 c.m. x thorax cavity deep margins were inverted on the back of left side of the chest just above the injury No,1 .
(3) Two lacerated fire-arm wounds 1 c.m. x 1 c.m. Each, two c.m. Apart margins inverted on the back of the right side of the chest below right scapula region.
(4) A lacerated fire-arm wound 4 c.m. x 2-1/2 c.m. x thorax cavity deep margins inverted oval in shape, lying on the right side of the chest 12 c.m. Below the armpit.
(5) A lacerated wound 1/2 c.m. x 1/2 c.m. x margins everted on the front of the abdomen at midline just below the Xifistemum.
(6) Three small lacerated wounds 1 c.m. x 1/2 c.m. Each lying on the left side of the chest just below the left armpit.
(7) A lacerated wound 4 c.m. x 1 c.m. x bone deep lying on the back of the head, just behind the right pinna.
' In the opinion of doctor death occurred due to shock and severe haemorrhage and damage caused by injuries to the major viscra i.e, heart, lungs and liver due to injuries Nos.1 to 6 which were sufficient to cause death in the ordinary course of nature.
10. Khadim Hussain F.C. P.W.10 and Habib Ullah F.C. P.W.11 narrated about the recovery of crime weapons at the instance of the appellants. Abdul Ghaffar P.W.13 deposed about the abetment of Muhammad Bakhsh for the commission of this offence. Investigation of this case was conducted by Saif Ullah, S.-I. P.W.14 and Muhammad Shafi P.W.15 as narrated in the earlier part of judgment.
Rest of the witnesses being of formal nature need not be discussed.
11. Learned D.A. Tendered in evidence reports of Chemical Examiner Exh.P.Q., that of Serologist P.R.
And Forensic Science Laboratory Exh.P.S. And closed the prosecution case.
12. Learned trial Court after appraising the evidence vide judgment, dated 19-8-1998 convicted and sentenced the appellants as narrated in the earlier part of the judgment.
13. Learned counsel for the appellants submitted that it was an unseen occurrence; eye-witnesses were introduced later on to strengthen the prosecution case. Admittedly the witnesses had enmity with the appellants and during the trial they made improvements in their statements thus, the statements of such-like witnesses especially in the presence of enmity should not have been relied upon in the absence of any corroborative piece of evidence and in the circumstances of the case both the appellants were entitled to the benefit of doubt. Recovery relied upon by the prosecution was a later innovation; the story narrated in the F.I.R. And before the trial Court was improbable. It was lastly argued that in the circumstances of this case maximum sentence of death was not called for. Conversely learned counsel for the complainant as well as the State vehemently opposed the arguments raised by the learned counsel for the appellants. Learned counsel for the complainant submitted that it was a preplanned murder, both the appellants being real brothers had a motive to participate in this occurrence and the prosecution had proved its case to the hilt.
14. We have heard the learned counsel for the parties and perused the record.
15. In order to prove the case against the appellants prosecution relied upon the ocular account which was narrated by Mirza Hafeez Ullah P.W.3 and Abdul Aziz P.W.4 and sought corroboration from the evidence of recovery, motive and medico-legal reports.
16. Both the eye-witnesses namely Mirza Hafeez Ullah P.W.3, real brother of the deceased and Abdul Aziz P.W.4, servant of the complainant, had supported the prosecution case. It is established from the record that in the village i.e, Kot Mithan, the complainant party had a residential house where they used to reside during the days of occurrence. At the time of occurrence Abdul Aziz was riding on the motorcycle with the deceased, whereas complainant riding on a separate motorcycle was following them and were going on the thoroughfare commonly used by them being the inmates of the area. The presence of the witnesses at the spot cannot be considered as unusual or out of place rather their presence would seem to be quite natural. No doubt they made some improvements in their statements but these improvements are negligible in the circumstances of this case. It has been observed that brother of the deceased namely Nazar Hussain was murdered about 8/9 months prior to the occurrence in which deceased alongwith other assailants was involved in the murder case but during the investigation deceased was not challaned and he was got discharged by the police. Record of this case further reveals that some criminal cases were also got registered by the deceased against Muhammad Bakhsh father of the appellant and others which show that both the parties were at daggers drawn. In the light of the established enmity between the parties it can easily be said that the accused party had the motive to commit the murder of Ehsan Ullah, deceased.
17. The enmity among the parties is established from the record, both the eye-witnesses namely Hafeez Ullah P.W.3 and Abdul Aziz P.W.4 are interested witnesses being a brother and servant respectively. In these circumstances, strong independent corroborative piece of evidence is required to rely upon the statements of such-like witnesses as observed by their Lordships in case titled Zia Ullah v. The State 1993 SCM R 155. It has been observed that the ocular account stands corroborated by the medical evidence which prove the fact that deceased received fire-arm injury allegedly caused by Ashiq Hussain appellant and the same was sufficient to cause death. During the spot inspection, two empties were taken into possession and were sent to the Forensic Science Laboratory prior to the recovery of gun P.13 recovered at the instance of Ashiq Hussain appellant.
The report of Forensic Science Laboratory Exh.P.S. Proves the fact that those empties were fired from the gun P.13. This recovery evidence also lends ample corroboration to the ocular account with regard to the participation of Ashiq Hussain appellant.
18. As far Manzoor Hussain appellant is concerned, he did not cause any injury to the deceased. The only allegation against him is that after snatching the revolver from deceased he made four ineffective fires at the spot. During the investigation neither the empties recovered from the spot nor the abovesaid pistol, were ever sent to the Forensic Science Laboratory for the comparison.
Similarly, the Investigating Officer had admitted during the cross-examination that after the recovery of empties from the spot as well as pistol at the instance of Manzoor Hussain none of it was secured in a sealed parcel. In. The circumstances recovery evidence is of no value and cannot be taken into consideration. Since the ocular account is not corroborated by any independent piece of evidence qua Manzoor Hussain appellant, he is entitled to get the benefit of doubt in the circumstances of this case.
19. For the reasons discussed above, the instant appeal to the extent of Manzoor Hussain appellant is accepted, his conviction and sentence is set aside and he is acquitted of the charge by giving him the benefit of doubt. He shall be released, forthwith, if not required in any other case.
' The instant appeal to the extent of Ashiq Hussain appellant having no force stands dismissed.
21. Death sentence awarded to Ashiq Hussain appellant is confirmed, and the murder reference is answered accordingly.