1. This judgment will dispose of Criminal Appeal No. 1212 of 1991 filed by Qamar Zaman, Ghulam Sarwar, Muhammad Amin and Shahid Saleem, appellants who were convicted under sections 304- A and 308, P.P.C. The appellants were convicted and sentenced to 7 years' R.I. Each with a fine of Rs.10,000 each under section 304-A, P. P. C. And in default of payment of fine to undergo further R.I.
2. For one year for causing the death of Mst. Nabila and for attempt to commit culpable homicide at Mst. Hameedan and her two daughters, they were sentenced to undergo 5 years' R.I. With a fine of Rs.5,000 each and in default of payment of fine to undergo further R.I. For one year under section 308, P.P.C. The benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellants. The conviction and sentence was recorded by learned Additional Sessions Judge, Gujrat vide judgment dated 24-11-1991. Criminal Revision No.486 of 1992 filed by Bashir Ahmad for enhancement of sentence awarded to the convict --appellants.
2. Briefly stated the facts of the case were that at about 8-9 a.m. On 16-7-1979 when the complainant Bashir Ahmad alongwith Master Muzaffar was returning to his house from his tubewell and when he passed by the hotel of Muhammad-Asghar situated in the same village, then the accused Mushtaq wrapped a cloth around the neck of Master Muzaffar and gave him fist blows.
3. However, they were separated and Master Muzaffar went away. Thereafter, two shots were fired from the house of Moulvi Muhammad Anti-, and out of fear Bashir Ahmad alongwith his brother Nazir Ahmad and Master Muzaffar alongwith Maulvi Nazar Muhammad sat on the Chobara of the house of Maulvi Nazar Muhammad. At about 12 noon, persons 44 in number, all armed with guns and rifles went to the roof of the house of Adalat Khan. All the 44 raised Lalkara upon which Maulvi Muhammad Amir fired at the complainant party with the weapon in his hand which resulted into death of Nazir. Thereafter, all the accused raising Lalkara entered the Abadi of the village and started setting the houses of Ahmadi community or fire. Then Hakim A.I fired and injured Master Abdul Razzaq. Thereafter, all the accused persons while firing came towards the northern mohallah of the village. Tariq and Ghulam Haider fired at Rafique who also died at the spot. Then Shahid Saleem, Amin and Sarwar made a murderous assault on Mst, Hameedan and her two daughters Naima and Haifa as a result of which all three of them were injured. After this, Qamar Zaman by a fire shot killed Mst. Nabila. Then all the accused persons started firing and setting on fire a large number of houses of Ahmadi community.
4. The motive alleged was that the complainant and the victims belong to Ahmadi faith and before the present occurrence, they had some religious dispute with Maulvi Muhammad Amir and feeling aggrieved the accused persons professing Islam as their faith while being armed with fire-arms killed the three deceased, injured four and set on fire the houses of the persons belonging to Ahmadi group. The F.I.R. Exh. PB/1 was recorded at p.m. On 16-7-1989.
3. The Investigating Officer prepared the injury statement of Muhammad Rafique Exh. PV, his inquest report Exh. PW, injury statement of Nazir Ahmad deceased Exh. PX, inquest report Exh. PY, injury statement of Mst. Nabila, Exh. PZ and her inquest report Exh. PAA, took into possession blood- stained earth respectively from the places of death of Mst. Nabila, Nazir Ahmad and Rafque Ahmad, deceased, on 17-7-1989 prepared the rough site-plan EXhs. PBB, PBB/1 and PB/33, then prepared the injury statement of Mst. Hamidan, Mst. Najma and Mst. Haifa Exh.PCC, Exh.PDD and Exh.PEE respectively and after the arrest of Maulvi Muhammad Amir, his licensed rifle was taken into possession vide memo. Exh.PM on 5-8-1990 and on the same day gun P.12 got recovered by Abdul Ghafoor was taken into possession vide memo. Exh. PN and then on 21-8-1990 Ghulam Haider led to the recovery of rifle P.13 which was taken into possession vide memo. Exh.PO. The remaining accused were arrested on 11-6-1991 to 19-6-1991. No further recoveries were effected from any of the accused. Out of the arrested accused, 12 were found innocent.
5. The learned trial Court charged 37 accused while the case of four absconding accused was separated. The accused Waris son of Jalal in the meantime had died. At the trial, the accused pleaded not guilty to which the prosecution produced 25 witnesses in all and one C.W. Was also examined. The accused in their statements under section 342, Cr.P.C pleaded false implication.
6. After conclusion of the trial, except the present appellants, rest of the accused were acquitted.
7. Learned counsel for the appellants after having read the prosecution evidence submits that there was delay in lodging the F.I.R. And same was recorded after due deliberation and consultation.
8. Further submits that the prosecution has failed to prove its story beyond any reasonable doubt.
9. Adds that Muhammad Ishaq, P.W.19 retrained in his house and did not see killing of Mst. Nabila and causing of injuries on the persons of the injured P.Ws.. Further adds that Mst. Hameedan did not mention the name of Muhammad Ishaq in her statement under section 161, Cr.P.C. To have seen the occurrence. According to the learned counsel, it was the complainant party which was aggressor, they killed Ahmad Khan and injured two P.Ws., namely, Fateh A.I and Muhammad Asghar and their injuries have been suppressed. Learned counsel submits that no weapon was recovered from any of the appellant during the course of investigation. Further submits that Muhammad Ishaque was falsely introduced as a P. W. In order to provide corroboration to the statement of Mst. Hamidan, P. W. Also submits that no specific question was put to any of the appellant in their statements under section 342, Cr.P.C. As to who caused the death of the deceased Nabila and injured the injured P.Ws. No specific roles were ascribed to the appellants, appellants have been falsely implicated due to religious rift, there are material discrepancies and contradictions in the statement of the eye--witnesses no case under sections 304-A and 308, P.P.C.
10. Is made out, it was a case of roiting and that the appellants are entitled to acquittal.
11. Learned counsel for the State submits that- it was a case of sudden flare up, there was commotion in the village due to which fight took place between the parties and it was not possible to ascertain as to who initiated the fight first, F.I.R. Was recorded with due deliberation and consultation and was not free from, bias, no recovery of weapon took place from the appellants, no specific injuries were ascribed to the appellants and that he honestly feels that guilt has not been brought home against the appellants.
12. Learned counsel for the complainant who has also filed criminal revision either for re-trial or enhancement of sentence of convicts submits that it was stated in the F.I.R. Specifically that it were the appellants who committed the murder of Mst. Nabila and injured two injured P.Ws. In their house, the learned trial Court has taken pains to reach the conclusion that it were the appellants having caused the death of Nabila and injuring the P.Ws., the trial Court has gone out of way by giving benefit to the appellants in not awarding the sentence as required under section 302/34, P.P.C. And that Exception (1) to section 300, P.P.C. As it then was could not have been applied in the instant case. Further, submits that star witness of the prosecution namely Mst. Hamidan had identified the appellants, attributed specific injuries to them and that she was held to be unbiased and independent witness in this case by the learned trial Court. Adds that the appellants have been extended the benefit by the trial Court to which they were not entitled. Further adds that the deceased and the injured P.Ws. Had nothing to do with the fight between Ahmadi and Muslims, defence of the appellants had been disbelieved by the learned trial Court in para. 12 of the judgment that it were the persons from other villages who came and killed the deceased and injured the injured P. Ws. Guilt off, the appellants has been proved to its hilt and that either the case may be remanded for retrial or in the alternative the sentences may be enhanced. Learned counsel lastly submits that in any case, the sentences awarded by the. Learned trial Court at least should be maintained.
13. I have heard learned counsel for the parties at sufficient length and have gone through the record.
14. In the instant case, three persons, namely, Mst. Nabila, Rafique ~ and Nazir were murdered while Abdur Razzaq, Najma, Haifa and Hameedan were injured from the side of the complainant while from the side of the present appellants, Ahmad Khan was killed while Asghar and Fateh were injured, From the side of the appellants, F.I.R. No-333 of 1989 was registered against the complainant party while F.I.R. No.334 of 1989 was registered against the present appellants and their co--accused. In the instant case, 40 persons were tried as three were P.Os. And one Waris died during the proceedings and only four,, that is, present appellants were convicted. The appellants were acquitted from the charge of murder of Nazir and Rafique and causing injuries on the persons of Abdur Razzaq but were convicted for the charge of murder of Mst. Nabila and murderous assault on Mst. Hameedan, Mst. Haifa and Mst. Najma. There is no State appeal against the acquittal of co-accused of the appellants, only revision has been filed by the complainant.
15. There was also no State appeal or revision on behalf of the appellant's party against the acquittal of complainant party in the murder case of Ahmad Khan and causing injuries on the persons of Fateh A.I and Muhammad Asghar, P. Ws.
16. The star witness of the prosecution in this case is Mst. Hameedan (P.W. 18) because Muhammad Ishaq, P.W. 19 has not been believed by the learned trial Court, Mst. Hameedan, P.W. In her statement has specifically mentioned that she was present in her house at Dopehrwela alongwith her two daughters, namely, Haifa and Najma and two other persons, namely, Muhammad Ishaq and Mst. Nabila, P. Ws. When four persons namely present appellants criminally trespassed into the house armed with guns and started firing upon Mst. Hamidan as a result of which her two daughters Najma and Haifa received fire-arm injuries. Thereafter, Qamar Zaman fired with his gun at Mst. Nabila as a result of which she died. Then Ghulam Haider and Tariq entered into the house and set the house on fire. Mst. Hamidan was medically examined alongwith her daughters. Lengthy cross-exanmination was conducted on Mst. Hamidan but nothing material could be brought on record to create any dent in the prosecution story. She being inmate of the house was natural witness and had no enmity whatsoever with the present appellants. Mst. Hamidan had fully implicated the appellants. Her statement is corroborated by medical evidence. The Court has to see the quality of evidence and not the quantity. Mst. Hamidan had nothing to do with the murder of Ahmed Khan and injuries of Muhammad Asghar and Fateh A.I After having gone through the statement of Mst. Hamidan I am of the considered view that she was natural and truthful witness.
17. Occurrence in the instant case had taken place in the year 1989 while the judgment was pronounced on 24-11-1991. After a period of more than a decade, I would not like to issue notice to the convicts in the revision filed by the complainant. Already lot of concession has been shown by the learned trial Court by not convicting them under section 302/337, P.P.C. For causing the death of Mst. Nabila and causing injuries on the persons of Mst. Hamidan, Haifa and Najma.
18. Resultantly, by dismissing the appeal filed by the appellants, the conviction and sentence recorded against them by the learned trial Court is maintained and they shall be taken into custody to serve out their remaining sentence. The revision filed by the complainant also fails and is dismissed as I such.