MUHAMMAD ASIF JAN, J.---Sahib Khan son of Shah Wali aged about 46 years, Saif A.I son of Muhammad A.I aged about 46 years, Mansab A.I son of Saif A.I aged about 24 years, Sher A.I son of Muhammad A.I aged about 50 years and Ghulam A.I son of Muhammad A.I aged about 49 years along with five other persons, namely, Hakim Khan son of Sher A.I, Muhammad Khan son of Shah Wali, Lal Khan son of Shah Wali, Muhammad Ashraf son of Fateh Khan and Sarsa Khan son of Muhammad Khan, were charged under sections 302/307/148/149, P.P.C. For having murdered Imdad Hussain deceased and Abid Hussain deceased on the 11th of June, 1990 at Deegar Vaila, that is about 4.00 p.m., in village Pail which is about ten miles from the Police Station Katha Sagral in the District of Khushab,
2. The above mentioned accused persons were tried by Mr. Muhammad Mehmood Chaudhry, learned Additional Sessions Judge of Khushab, who vide his judgment/order dated the 2nd of March, 1991 was pleased to convict Sahib Khan and Saif A.I appellants under section 304(1), P.P.C.
For having murdered Imdad Hussain and Abid Hussain deceased. Both Sahib Khan and Saif A.I appellants were sentenced to undergo imprisonment for life. It was further ordered that both shall pay Rs.30,000 each and that the amount if recovered would be paid as compensation to the heirs of the deceased persons.
3. Mansab A.I, Sher A.I and Ghulam A.I appellants were convicted by the learned trial Court under section 324, P.P.C. For having caused hurt to Ghulam Hussain (P.W.14) and Muhammad Shaft (P.W.15). These three accused persons were sentenced to R.I. For two years. A fine of Rs.5,000 each was also imposed.
The benefit of section 382-B, Cr.P.C. Was given to all the five convicts.
4. Vide the same judgment/order Hakim Khan, Muhammad Khan, Lal Khan, Muhammad Ashraf and Sarsa Khan accused persons were acquitted of all the charges by the learned trial Court.
5. Feeling aggrieved by the judgment/order of the learned trial Court the State has appealed by way of Criminal Appeal No.823 of 1991 and has prayed that the teen accused persons may all be convicted under sections 302/307/148/149, P.P.C.
Sahib Khan, Saif A.I, Mansab A.I, Sher A.I 'and Ghulam A.I have also appealed against their conviction and sentences by way of Criminal Appeal No.198 of 1991 and prayed that their appeal be accepted, their conviction and sentences be set aside and that they be acquitted.
Captain (Retd.) Muhammad Razzaq complainant (P.W.13) who is the father of Imdad Hussain deceased has brought a revision petition by way of Criminal Revision No.167 of 1991 against the judgment/order of the learned trial Judge, praying that the order of the learned trial Court acquitting the accused persons of the charge under sections 148/302/307 and 149, P.P.C. Be set aside.
6. These connected matters were heard and decided by us vide our judgment dated the 3rd of October, 1994.
The conviction of Sahib Khan and Saif A.I was altered from section 304(I), P.P.C. To section 302, P.P.C.
However, the sentence awarded by the trial Court was unaltered and, therefore, remained the same. The conviction and sentences of Mansab A.I, Sher A.I and Ghulam A.I was also maintained.
Thus, Criminal Appeal No.823 of 1991 filed by the State was partly allowed while Criminal Appeal No.198 of 1991, filed by the convicted appellants was dismissed. The private Criminal Revision bearing No. 167 of 1991 was also dismissed.
7. Leave to appeal against our abovementioned judgment was sought by Sahib Khan and four others by way of a petition for the grant of Special Leave to Appeal bearing No. 145 of 1994. Leave 'was granted and the petition converted into Criminal Appeal No.207 of 1995.
A second petition for the grant of leave to appeal was brought by Captain (Retd.) Muhammad Razzaq against Sahib Khan and ten others by way of Criminal Petition No.400-L of 1994: Leave was granted and the petition converted into Criminal Appeal No.208 of 1995.
8. Both Criminal Appeals (Nos.207 of 1995 and 208 of 1995) were allowed by their Lordships of the Supreme Court vide judgment, dated the 4th of February, 1997.
9. Their Lordships were pleased to remand the case to this Court for fresh hearing of both the appeals strictly according to law and fresh judgment.
10. A report (Exh. P. V.) regarding the occurrence was lodged on the day of occurrence, that is, on the 11th of June; 1990 at 7-00 p.m. By the complainant Muhammad Razzaq (P.W.13) at Police Station Katha Sagral, where it was reduced into writing by Sub-Inspector Khan Amir (P.W.16) who was the Station House Officer of the said police station at that time.
11. The occurrence was witnessed by Muhammad Razzaq (P.W.13); Ghulam Hussain (P.W.14) and Muhammad Shaft (P.W.15).
Out of the three eye-witnesses, Ghulam Hussain (P.W.14) and Muhammad Shafi (P.W.15) received injuries during the occurrence.
12. Sher A.I accused was arrested on the 12th of June, 1990. Muhammad Ashraf and Sarsa Khan accused were arrested on the 23rd of June, 1990. Saif Ail and Sahib Khan accused were arrested on the 27th of June, 1990. Lal Khan, Muhammad Khan, Mansib Khan and Ghulam A.I were arrested on the 7th of July, 1990. Hakim Khan accused was arrested on the 23rd of July, 1990. The arrests were made by the Sub-Inspector Khan Amir (P. W.16).
13. Rifle (P.7) was recovered from Sher A.I accused on the 19th of June, 1990 vide memo. Exh.P.P. By the Sub-Inspector Khan Amir and was witnessed/attested by Ghulam Sarwar (P.W.7). The gun (P.1) was recovered from Muhammad. Ashraf on the 25th of June. 1990 vide memo. Exh.P.K., by the same Police Officer and was witnessed/attested by Muzaffar Khan (P.W.4). On the same day, another gun (P.2) was recovered from Sarsa Khan vide memo. Exh.P.L. By the same Police Officer and was witnessed/attested by the same witness. Rifle (P.6) was recovered from Saif A.I on the 1st of July, 1990 vide memo. Exh.P.O. By the same Police Officer and was witnessed/attested by Sabir Hussain (P.W.6). On the same day another rifle (P.5) was recovered from Sahib Khan vide memo. Exh.P.N. By the same Police Officer and attested by the same witness. Rifle (P.16) was recovered from Mansib Khan on the 11th of July, 1990 vide recovery memo Exh.P.S. By the same Police Officer and was witnessed/attested by Sher Afzal.(P.W.9). Rifle (P.3) was recovered from Ghulam A.I on the 14th of July, 1990 vide recovery-memo. Exh.P.M. By the same. Police Officer and was witnessed/attested by Sabab Khan (P.W.5). Finally, Rifle (P.9) was recovered from Hakim Khan on the 3rd of August, 1990 vide recovery memo. Exh.P.Q. By the same Police Officer and was witnessed/attested by Ghulam Sarwar (P.W.7).
14. The accused persons pleaded total denial and false implication due to enmity except Sher A.I accused who pleaded that the complainants were aggressors and that the accused were in fact the victims of aggession. Saif A.I accused adopted the position taken by Sher A.I. However, no evidence was led in defence.
15. Complainant Muhammad Razzaq appeared at the trial as P.W.13 and stated that on the 11th of June, 1990 at about Deegar Vaila he along with his son Imdad Hussain, Abid Hussain, Ghulam Hussain (P.W.14), Muhammad Shaft (P.W.15) were sitting at a hotel belonging to Imdad Hussain and were taking tea when all of a sudden Sahib Khan, Saif A.I, Sher A.I, Mansib Khan, Hakim A.I and Ghulam A.I were armed with .7 mm rifles, Muhammad Khan, Lal Khan, Sarsa Khan and Muhammad Ashraf armed with .12 bore guns came to the said hotel and raised a Lalkara that they will now teach a lesson for the abduction of one Sher A.I. Thereafter, Sahib Khan fired with his rifle and hit the complainant's son Imdad Hussain deceased at his mouth who fell down on the ground. Thereafter, Saif A.I fired with his rifle at Abid Hussain Shah and hit him in the abdomen. Abed Hussain also fell down, Sher A.I fired with his rifle and hit Muhammad Shat1 on the right knee-joint and lower portion of the leg. Mansib Khan fired with his rifle at Muhammad Shaft and hit him on the lower portion of the left leg. Hakam Khan fired at Ghulam Hussain and hit him on the lower portion of the right leg.
Ghulam A.I also fired at Ghulam Hussain and hit him on the left foot. Lal Khan, Sarsa Khan, Muhammad Ashraf and Muhammad Khan who were armed with .12 bore guns fired ineffectively.
Imdad Hussain, Abid Hussain, Ghulam Hussain and Muhammad Shafi sustained injuries. Imdad Hussain and Abid Hussain died as a result of those injuries. Muhammad Shaft and Ghulam Hussain were hospitalised.
Regarding the motive complainant Muhammad Razzaq (P.W.13) stated that one Sher A.I, a councillor was abducted by his sons so that he could not case his vote in the election of the Chairman of the Union Council of Ladhrar and since the said Sher A.I Councillor belonged to the opposite group, therefore, his abduction was revenged by the present occurrence.
16. Ghulam Hussain appeared at the trial as P.W.14 and stated that on the day and time of occurrence he alongwith Imdad Hussain, Abid Hussain deceased, Muhammad Shafi, Murid Hussain and Muhammad Razzaq was having tea at the hotel of Imdad Hussain when the accused persons armed with fire-arms arrived at the said hotel and resorted to indiscriminate firing as a result of which he was also injured. According to Ghulam Hussain (P.W.14) he was fired at by Hakam A.I and his right leg was injured and thereafter, Ghulam A.I fired at hire with his rifle and hit him on the left foot and stated that he was taken to R.H.C. Padhrar where he was medically examined and that when Imdad Hussain and Abid Hussain were examined by the Doctor they were already dead.
17. Muhammad Shafi appeared at the trial as P.W.15 and stated that on the 11th of June, 1990 at about Deegar Vaila he alongwith Ghulam Hussain, Abid Hussain, Imdad Hussain, Muhammad Razzaq and Murid Hussain was having tea at the hotel belonging to Imdad Hussain when the accused persons arrived at the same hotel armed with fire-arms and opened fire, as a result of which he was also injured. Giving the same details as the other eye-witnesses Muhammad Shafi stated that Sher A.I fired at him and injured his right leg while Mansab Khan fired at him and injured his left foot.
18. Three eye-witnesses have given a consistent straightforward and truthful account of the occurrence. Out of all these three eye-witnesses Ghulam Hussain (P.W.14) and Muhammad Shafi (P.W.15) suffered fire-arm injuries. All three have been subjected to lengthy cross-examination and nothing has been brought on record to shake their consistency or credibility.
19. Learned counsel for the convicted appellants contended that the motive set up by the prosecution was not proved and, therefore, the only plausible explanation is the defence version, that the ocular account of the occurrence was belied by the medical evidence, that the prosecution version was inherently improbable, that the eye-witnesses were related to the deceased persons and inimical towards the accused and had made material improvements in their testimony, that the injuries of the eye-witnesses were beyond explanation, that the recoveries were not worth any reliance, that the investigation was dishonest and finally that the defence version was reasonably possible.
20. Learned counsel appearing on behalf of the State and the complainant argued that the motive was in fact admitted inasmuch as that it was suggested during the trial that there was enmity and bad blood on account of the abduction of Sher Khan, Councillor. Learned counsel further submitted that the version of the prosecution and defence must be seen in juxtaposition. The defence version that the unfortunate occurrence was trigged off on account of a. Collision of the tractor of Sarsa Khan accused with the Suzuki Van of Imdad Hussain deceased, does not appeal to reason because Sarsa Khan himself does not even mention this incident. Learned counsel further submits that it does not stand to reason that four persons came armed for a vendetta and caused only two simple injuries on the legs of Saif A.I. Regarding the so-called contradiction between the ocular account and the medical evidence learned counsel referred to Taylor 1965' Edition, page 295 at page 228, to show that as a matter of fact there was no contradiction at all.
21. Seen in juxtaposition, the prosecution case emerges as being nearer the true. There is nothing improbable about the presence of the eye-witnesses whose presence seems to be fortified by their injuries. The investigation does not seem to be dishonest. There are no indications of a free fight.
The injuries to the deceased persons are specifically attributed to only two l persons, namely, Saif A.I and Sahib Khan.
22. The accused persons pleaded total denial and false implication due to enmity. However, no evidence was led in defence. Slier A.I accused pleaded that the complainants were aggressors and that the accused were to fact victims of aggression. Saif A.I accused adopted the position taken by Sher A.I. In answer to the question "have you anything else to say?", he "I am innocent. Prior to the occurrence Imdad Hussain deceased parked his Pick-Up on the road- side, proceeding to the house of Sarsa Khan accused. At that time, Sarsa Khan crossed his tractor from the same place, whereupon' Imdad Hussain had an exchange of hot words with Sarsa Khan by saying that tractor collided with his Pick-Up. Thereafter, myself and Saif A.I also came there from our hereby shops and houses and slapped Imdad Hussain. Thereafter, Imdad Hussain left the place after threatening to teach us a lesson, and went to his village Padhrar. At the tine of occurrence, Imdad Hussain deceased duly armed along with Abid Hussain deceased, Ghulam Hussain and Muhammad Shaft P. Ws. Who were also armed came to our shops and caused fire- arm injuries to me and Saif A.I and during that course of occurrence, Imdad Hussain, Abid Hussain, Ghulam Hussain and Muhammad Shaft proceeded to the roof of market and started firing towards our houses. Thereafter, relatives of Sher Jang who are our enemies also joined Imdad Hussain deceased etc., and opened firing It is said that Abid Hussain and Imdad Hussain received one injury each from a close range at the hands of a relatives of Sher Jang. In the meanwhile, opposite group of Feroz P.W. And his brother Nazar Hussain also started firing. Then there was exchange of brick bats which caused injuries to Muhammad Shaft and Ghulam Hussain, who later on got false certificates under the influence of Malik Muhammad Naeem. MNA, now Federal Minister. I appeared before the police alongwith my brother Saif A.I in an injured condition with the request that the complainant party wag aggressor and a case be registered against police was dishonest under the abovementioned influence delayed our medical examination and did nothing against the complainant party. Then Hon'ble High Court was approached on our behalf with the prayer that the case may be ordered to be registered against the complainant party. The Hon'ble High Court ordered that a case be registered as prayed for but the police only recorded a Rapat and took no further action against the complainant party."
As against the case of the prosecution which has been proved beyond all reasonable doubt there is nothing available on the record to even mildly suggest the probability of the stance taken by the accused persons. Accordingly we have no option but to accept the version of the prosecution.
23. Resultantly the conviction of Sahib Khan and Saif A.I is altered from section 304(I), P.P.C. To section 302, P.P.C. However, the sentence remains the same. The conviction and sentence of Mansib A.I, Sher A.I and Ghulam A.I is also maintained. Thus, Criminal Appeal No.823 of 1991 filed by the State is partly allowed while Criminal Appeal No.198 of 1991 filed by the convicted appellants is dismissed: The private Criminal Revision No.167 of 1991 has not been seriously pressed and is, therefore, dismissed.