' RIAZ KAYANI, J.---Izhar Ali Shah son of Muhammad Naqi Shah the first informant of F.I.R. No, of 1992 registered with Police Station Naushera Virkan, District Gujranwala on 3-1-1992 has laid challenge to the judgment of the learned Judge, Special Court (S.T.A.) Gujranwala, dated 7-1-2000 whereby he acquitted Shahbaz, Peer Muhammad and Muhammad Farooq from the charge of murder of Muhammad Yaqoob and Liaqat Ali Shah.
2. Vide order, dated 11-5-2000 no case for interference was made out against Shahbaz and Peer Muhammad respondents Nos.1 and 2 respectively and appeal against acquittal' to their extent was dismissed. However, reasoning given by the learned trial Judge in acquitting Muhammad Farooq respondent No,3 were found to he speculative in nature bordering on perversity, therefore, bailable warrants were issued to secure his attendance.
3. Muhammad Farooq respondent No,3 having been served and represented by a counsel, the appeal was heard at length.
4. On 3-1-1992 at 2-30 p.m. Lzhar Ali Shah the present appellant/complainant lodged a statement which was recorded by Muhammad Saleem Inspector/S.H .0., Police Station, Naushera Virkan at 2 p.m.. At Chak Dooni Chand which was to the effect that on same day at 1 p.m. While he was undergoing training in the Police Department at Sehala and due to the closure of the College he had to come to house at village Babbar where his nephew Liaqat Ali who also was head constable in the Police Department and was on leave had joined him in the village and at 1-00 p.m. They were accompanied by Muhammad Yaqoob, his brother, Muhammad Zaki Shah son of Muhammad Taqi Shah, Asjad Ali Shah son of Shaukat Ali Shah and were going towards their tubewell near Government High School Babbar when they reached the ground of the said School Muhammad Afzal son of Abdur Rashid armed with 12 bore gun, Shakrullah alias Tulla son of Abdur Rashid armed with 7 MM rifle, Muhammad Farooq son of Peer Muhammad armed with Kalashanikov and ljaz Ahmad alias Jaju son of Manzoor Ahmad armed with .12 bore gun were sitting in ambush in the verandah of the School and immediately on seeing them Muhammad Afzal raised a Lalkara that they should be done to dean upon which he along with Asjad and Muhammad Zaki took refuge in the fields where Shatala crop was grown whereas Muhammad Yaqoob and Liaqat Ali were encircled and were made to raise their hands above their shoulders. Muhammad Afzal fired with his 12 bore gun which hit Muhammad Yaqoob near his right ear followed by second fire by ljaz with his 12 bore gun which hit Muhammad Yaqoob on his right knee and by then another fire made by Muhammad Farooq with his Kalashnikov which hit Muhammad Yaqoob on his left leg upon which he fell to the ground. Liaqat Ali went to rescue of his uncle Muhammad Yaqoob and he was prevented in doing so by Muhammad Afzal who fired with his 12 bore gun hitting Liaqat Ali on his back followed by a fire by Muhammad Farooq with his Kalashnikov which hit Liaqat Ali on his right leg and Ijaz Ahmad also fired with his gun which hit Liaqat Ali on his back and lastly Shakrullah alias Tulla fired with his 7 MM rifle which hit Liaqat Ali on his right flank whereafter all of them started indiscriminate firing hitting Muhammad Yaqoob and Liaqat Ali Shah on the various parts of their bodies. Resultantly Muhammad Yaqoob succumbed to his injuries at the spot and Liaqat Ali got grievously injured. Muhammad Afzal, Muhammad Farooq, Ijaz Ahmad and Shakrullah resorting aerial firing and raising lalkaras left towards the village. Liaqat Ali was brought in an injured condition to the Civil Hospital, Naushera Virkan.
5. Motive for the occurrence is that on 28-12-1991 elections were held in which Malik 'Yousaf and Shahbaz Dhillu were the contestants and Muhammad Yaqoob deceased hed not given vote in favour of Shahbaz in spite of his request which infuriated Shahbaz Dhillu and his anger got exasperated when Malik Muhammad Yousaf won. On 1-1-1992 he along with Muhammad Yaqoob were told by Riaz son of Abdul Latif and Abid Hussain son of Ahmad Hussain that Rashid son of Muhammad Hussain along with Shahbaz and Peer Muhammad sons of Khuda Bakhsh, Muhammad Afzal, Shakrullah, Muhammad Farooq and Ijaz Ahmad were sitting in the haveli of Peer Muhammad where they heard Shahbaz, Rashid, Peer Muhammad and Muhammad Afzal and others that they have lost the election because of Muhammad Yaqoob who had brought shame to them, therefore, he should be murdered. As a consequence of which Muhammad Afzal, Shakrullah, Farooq and Ijaz Ahmad in furtherance of their common intention and at the behest of Rashid, Shahbaz and Peer Muhammad murdered his brother Yaqoob and committed murderous assault on Liaqat Ali.
6. Later on Liaqat Ali also died.
7. Ijaz Ahmad, Shakrullah and Muhammad Afzal were declared proclaimed offenders whereas Rashid Ahmad died, therefore, the trial proceeded against Shahbaz, Peer Muhammad and Muhammad Farooq who all were acquitted and as narrated earlier Shahbaz and Peer Muhammad, against whom there was allegation of abetment, were not summoned in this appeal which stood dismissed against them.
8. Mulazam Hussain, Inspector investigated the case and on 5-2-1992 arrested Muhammad Farooq and made recoveries of guns from Ijaz Ahmad, Muhammad Afzal and Shakrullah. However, no recovery could be made against Muhammad Farooq respondent No,3.
9. Dr. Ali Muhammad, Medical Officer, Rural Health Center, Kamoke Conducted the post-mortem examined on the dead body of Mutrammad Yaqoob and found 8 fire-arm injuries. The fire-arm injury attributed to Muhammad Farooq was in let wound 2 x 2 c.m. x going deep with burnt inverted and blackened margins on the outer side of left leg at middle whereas injury No,8 was exit wound 8 x 6 c.m. With everted margins on front and inner side of left leg at middle. In the opinion of the doctor all the injuries were ante-mortem and caused by fire-arm. Death occurrence due to shock and massive bleeding as a result of Injuries Nos.3, 6 and 7 collectively which were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate and between death and postmortem was about 24 hours.
10. On the same day the doctor also conducted post-mortem examination on the dead body of Liaqat Ali Shah on whom seven injuries were found. Injury No,6 was inlet wound 5 x 5 c.m. Going deep on planter surface of right foot outer side, and Injury No,7 was an exit wound 2 x 2 c.m. With everted margins on planter surface, 3 c.m. Inner to the Injuries No,6. In the opinion of the doctor all the injuries were ante-mortem and caused by fire-arm. Injuries Nos.1, 2 and 5 were grievous in nature and dangerous to life and the others were simple. Death occurred due to shock and haemorrhage and a result of Injuries Nos.', 2 and 5 collectively. Probable time between injuries and death was about 2 to 3 hours and time between death and post-mortem was about 24 hours.
11. Injuries Nos.7 and 8 on the body of Muhammad Yaqoob and Injuries Nos.6 and 7 on the body of Liaqat Ali Shah described above were attributed to Muhammad Farooq respondent No,3.
12. Muhammad Farooq respondent along with others were indicted they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 13 witnesses. Ocular testimony account was furnished by Izhar Ali Shah P.W.6 and Muhammad Zaki Shah P.W.7.
Muhammad Farooq respondent when examined under section 342, Cr.P.C. Denied his participation in the occurrence and in reply to the question as to why the prosecution brought the case against him he stated that P.Ws. Were closely related inter se to the deceased and were inimical towards him.
13. Learned counsel for the appellant contended that the reasons given by the learned trial Judge for acquittal of Muhammad Farooq are contained in para.20 of the judgment. Learned trial Judge acquitted Muhammad Farooq as the statements of the witnesses were not believed they being closely related to the deceased and that neither any crime weapon was recovered from the accused nor any crime empty was found at the spot which could be said to be of a Klashinkov which was wielded by Muhammad Farooq. The medical evidence regarding the injuries attributed to Muhammad Farooq on the person of Liaqat Ali Shah was also criticised. Lastly in para.23 the trial Judge while acquitting Muhammad Farooq relied upon the police investigation who found him, although present at the spot, but empty handed.
' It was stated by the learned counsel with vehemence that the ocular testimony account by Izhar Ali Shah P.W.6 and Muhammad Zaki P.W.7 was free from taint and mere relations with the deceased was no ground to discard their testimony. The said testimony was in line with the medical evidence which offered necessary corroboration as such a grave miscarriage of justice ensued by the acquittal of Muhammad Farooq for the murder of Muhammad Yaqoob and Liaqat Ali Shah.
14. Learned counsel for the complainant supported the judgment of the trial Judge and stated that no empty having been fired with the Kalashnikov was found at the spot and that the Investigating Officer despite lexhausting physical remand could not effect :recovery of weapon from respondent No,3 Muhammad Farooq rather he found him empty-handed, therefore, his mere presence at the spot was not sufficient to even make him vicariously liable for the acts of his co-accused.
15. Learned Assistant Advocate-General supported the counsel for the complainant by stating that the judgment of the trial Judge was tentative in nature and did not take into account the submissions of the eye-witnesses according to the standard and norms set up by the superior Courts in a criminal trial.
16. We have closely examined the case and have heard the arguments of the respective counsel at length.
17. It is true that the motive set up by the prosecution may not have been successfully proved but the recent view of the apex Court is that even where the prosecution conviction can be based provided the sets up a motive and is unable to prove it still testimony of the eye-witnesses is truth worthy. Applying the said test to the depositions of lzhar Ali. Shah P.W.6 and Muhammad Zaki P.W.7 we find. That witnesses being close relations and free from their vocations they had gathered to spend sometime together and in this context they were proceeding towards their tube well, a place where the villagers usually sit and chat. Muhammad Zaki P.W.7 along with Muhammad Razaq (not examined) are cultivators, therefore, they had to be present in their village. Suggestion to the complainant that he had not seen the occurrence and was informed later on was denied. Not a single question was asked from the witnesses that they are deposing against the respondent because of any animosity or rancour. Statements of both the witnesses have a ring of truth around it and inspires confidence. Mere relationship is not sufficient to disbelieve the witnesses who otherwise have told the truth and the ordinary yardstick to test their veracity is whether they had any motive to substitute the respondent with the real culprit. No such question has been asked in the lengthy cross-examination to rouse suspicion in our minds.
18. The conclusion arrived at by the Investigating Officer that Muhammad Farooq although present at the spot was empty handed stems from the fact that no recovery of any weapon was made from him. Learned counsel for Muhammad Farooq respondent No,3 failed to satisfy us that this standard was sufficient to absolve Muhammad Farooq respondent of his participation in the perpetuation of the crime along with others resulting in the death of two persons. Even otherwise it is not denied that both the deceased had about 16 fire-arms injuries and not a single empty either of a gun or a rifle was recovered from the spot, therefore, failure of recovery of the empty fired with a Klashinkov could have created any dent in the prosecution case. Three feet shaftal crop was growing and the possibility the empties may have been lost somewhere cannot be excluded.
Having discussed the ocular testimony to be free from taint we find the same to be consistent with the medical evidence and this by itself receives corroboration.
19. Dr. Ali Muhammad who performed the autopsy on the dead bodies of Muhammad Yaqoob and Liaqat Shah admitted in his cross-examination that Injuries Nos.6 and 7 on the dead body of Muhammad Yaqoob cannot be considered to be on vital part and that Injury No,8 was the exit wound of Injury No,7. Further it was admitted that Injury No,3 caused by the co-accused was sufficient to cause death of Muhammad Yaqoob in the ordinary course of nature. Similarly Injury No,5 attributed to respondent No,3 Muhammad Farooq on Liaqat deceased was on the non-vital part of the body and that injury No,7 was the exit wound of Injury No,6. Reading the medical evidence in its totality injuries caused by Muhammad Farooq to Yaqoob and Liaqat were on non- vital part and were not proximate the cause of death. However, he was vicariously liable for the acts of his co-accused who absconded as were responsible for causing the death of the deceased. We, therefore, take a lenient view particularly when the occurrence relates to the year 1992 and convicting respondent No, 3 under section 302(b), P.P.C. On two counts for the murder of Muhammad Yaqoob and Liaqat sentence him to R.I. For life. He shall also pay compensation under section 544-A, Cr.P.C. In the sum of Rs,20,000, out of which ten thousand rupees each shall be given to the heirs of Muhammad Yaqoob and Liaqat deceased. In case of non-payment of compensation Muhammad Farooq shall suffer further imprisonment for six months. Sentences shall run concurrently and benefit of section 382-B, Cr.P.C. -.Shall be extended to respondent No,3.
Appeal succeeds and is disposed of as such. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.