' This judgment will dispose of Criminal Appeal No,377 of 2001 filed by Muhammad Naveed alias Dangar, Muhammad Yousaf and Muhammad Tariq, appellants and Criminal Appeal No,336 of 2001 filed by Muhammad Jamil, appellant, who were convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment dated 12-2-2001 as under:-- ' Assad Naveed alias Dangar, appellant under section 302(c)/34, P.P.C. To undergo imprisonment for 25 years' R.I. And to pay Rs,50,000 as compensation or in default one year's S.I.
' Muhammad Yousaf, Muhammad Tariq Muhammad Jamil, appellants to undergo .10 years' R.I.
Each under section 302(c)/ 34, P.P.C. With a compensation of Rs,25,000 each or in default six months' S.I.
' All the appellants were granted the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place at 8-15 p.m. On 17-9-1999 within the jurisdiction of Police Station Bhatti Gate, Lahore at a distance of 1/2 Km. While the matter was reported to the police at 9-30 p.m. On the same day by Syed Abid All Shah complainant through complaint Exh.P.A. And the formal F.I.R. Exh.P.A./1 was recorded by Hafiz Muhammad Aneeq, A.S.-I. At 9-45 p.m. Same day in police station.
3. Briefly stated the facts of the case are that a few day prior to the occurrence, Safdar Ali Shah had a quarrel with Naveed alias Dangar, Jamil, Yousaf and Tariq. On the day of occurrence, that's, 17-9- 1999 at about evening time, Tariq came to the shop and took away, the brother of the complainant in the presence of his father under the garb of effecting a compromise. Upon this, Shah Hussain (deceased) Muhammad Shahzad, Aamir Butt and Safdar Shah came to the shop of Tariq at about 8-15 p.m. In the mean time Naveed alias Dangar, Jamil and Yousaf all armed with mauser came there.. Tariq raised a Lalkara asking Naveed etc. To teach a lesson to Shah Hussain for compromise, upon which Tariq, Naveed, Jamil and Yousaf started firing with their weapons. Inasmuch as, the fire shot by Naveed hit Shah Hussain on his right temporal region as a result whereof, he fell down.
Safdar Shah also sustained bullet strike at his Shalwar but luckily he was saved. It was further alleged that Mahmood brother of Naveed supplied the ammunition to the assailants on a motorcycle. Shah Hussain succumbed to his injuries while in his way to the hospital.
4. Investigation of the case was taken over by Gulzar Hussain, S.-I. P.W.13. On receipt of information he went to Mayo Hospital, recorded the statement of the complainant, sent the same to police station and then started investigation. He first of all inspected the dead body, prepared injury statement Exh.P.J., inquest report Exh.P.K., then inspected the spot, prepared the site plan without scale Exh.P.O., took into possession blood-stained earth vide memo. Exh.P.S., also collected 7 crime- empties from the spot and took the same into possession vide memo. Exh.P.E. And on 25-9-1999 Muhammad Yousaf, joined the investigation and a .30 bore pistol P.9 was recovered from him which was taken into possession vide memo. Exh.P.R. On 5-10-1999 Naveed and Muhammad Jamil were arrested. Naveed on 10-10-1999 got recovered .30 bore pistol P.7 which was taken into possession vide memo. Exh.P.H., Muhammad Jamil, also got recovered pistol .30 bore P.8 which was secured vide memo. Exh.P.I. Muhammad Tariq and Muhammad accused were arrested on 16-10- 1999 but no recovery was effected from them. After completion of the remaining investigation all the five accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 16 witnesses in all, thereafter, A.P.P.
Tendered in evidence reps . Of the Chemical Examiner Exh.P.R., report of the Serologist Exh.P.S., re-rt of the F.S.L. Exh.P.T. And closed the prosecution case then the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
6. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellants submits prosecution has examined two eye-witnesses, namely, Safdar and Abid, who are first cousin and real brother of the deceased, that as far as, Abid is concerned, he was not a resident of the place of occurrence but he was working in WAPDA Department which was at a distance of 15 miles away from the place of occurrence, he neither procured the death certificate nor signed the inquest report, that occurrence had taken place in a very busy Bazar but no independent witness from the said Bazar was produced by the prosecution, that occurrence has taken place in front of the shop of Tariq appellant, that learned trial Court has disbelieved the motive furnished by the prosecution, that empties were recovered from the spot but the result thereof is negative one, that in fact, Malik Baqir who is owner of shop adjacent to the shop of Tariq appellant took the deceased to the hospital and he had signed the inquest report, that said Malik Baqir neither cited nor produced by the prosecution as an eye witness, that firing has not taken place as the prosecution wants from us to believe that points C and D of the site plan show the presence of Safdar Hussain and Abid Ali at the spot, that Muhammad Shahzad and Aamir Butt who were shown to be as eye-witnesses were resident of 10 miles away from the place of occurrence and they were given up by the prosecution as unnecessary, that Safdar Shah an eye-witness is a person of bad character having involved in so many cases of criminal nature, that according to prosecution version and that of Safdar Shah he received five fire-arm shots on his Shalwar but he was not injured and produced the said Shalwar on 25-10-1999 i,e, one month and 15 days after the occurrence and learned trial Court has rightly disbelieved his version, that version of the appellant is being supported by Gulzar Hussain, S.-I./ Investigating Officer P.W.13, that if both the versions are put in juxtaposition, the version put forward by the appellants seems to be more plausible and convincing one, that there is no independent corroboration to the statements of these interested and inimical witnesses, that according to the investigation of P.W.13, Tariq accused was present at the spot without any weapon while Muhammad Yousaf and Nasir Mahmood were found not to be present at the spot at the time of occurrence, that learned trial Court had held that it was a case of sudden fight and nit of premeditated murder.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant who has filed Criminal Revision No,186 of 2001 submits that it was a case of promptly lodged F.I.R.
Where the names of the accused, weapons which they used and the role they played are mentioned, that it was Naveed alias Dangar, who had fired a fatal Shot on the person of the deceased, that shop of the appellant is close to the shop of the deceased, that these two shops are close to each other so the peoples hesitate to become a witness from that locality, that presence of both the eye-witnesses are very natural one, that presence of Safdar has been admitted by the defence. Learned counsel has referred the statement of Syed Zulfiqar Ali Shah P.W.12 father of the deceased, according to his statement, deceased was taken away by Tariq appellant on the pretext to get the matter compromised, that this P.W. Has no motive to falsely implicate the appellants, that statements of both the eye-witnesses are very consistent one and there is no reason to disbelieve their statements, that ocular account is fully corroborated by medical evidence, that recovery was effected in the presence of independent witnesses although the same are not wedded with the crime weapon. Learned counsel for the complainant has also referred paragraph No,23 of the judgment of the learned trial Court.
8. I have heard the learned counsel for the parties at a great length and have also gone through the record with their able assistance. Five accused were named in the F.I.R., Nasir Mahmood has been acquitted, the only fatal shot is attributed to Asad Naveed alias Dangar, who has been awarded imprisonment for 25 years' R.I. Under section 302(c), P.P.C. While Muhammad Jamil, Muhammad Yousaf and Tariq have been awarded 10 years' R.I. Under section 302(c), P.P.C. By the learned trial Court. Learned counsel for the complainant has filed criminal revision for the enhancement of sentence against all the four appellants. Asad Naveed alias Dangar has already been awarded maximum sentence under section 302(c), P.P.C. So his sentence cannot be enhanced by this Court because neither the State nor the complainant has filed any appeal against the acquittal of the appellants under section 302(a) or (b), P.P.C. While the charge was framed by the learned trial Court under section 302, P.P.C. In criminal revision the law do not permit me to convict any accused person when he has been acquitted under section 302(a) or (b), P.P.C., unless appeal against their acquittal has been filed and notice issued to the accused person in this regard. Learned counsel for the complainant has relied upon PLD 1996 SC 274 and insisted that this Court can award the death sentence under section 302(c), P.P.C. Because it was a case of Qatl-e- Amd but according to my mind, this submission of the learned counsel is totally illegal and against the law.
9. Now I take up the case of the prosecution, the case of the prosecution was that Tariq appellant took the deceased at his shop on the pretext to compromise the matter, where all the present appellants including Nasir acquitted accused were present, there Tariq raised Lalkara and Asad Naveed alias Dangar fired a shot which hit the deceased, thereafter, all the other present appellants fired at the spot which hit the Shalwar of Safdar an eye-witness and according to said Safdar there were five holes of fire-arm on his Shalwar. Occurrence in this case had taken place on 17-9-1999 and the Shalwar was produced on 25-10-1999 that's, one month and 15 days after the occurrence and learned trial Court has rightly disbelieved the recovery of Shalwar and I also hold the same. Leaned counsel for the complainant has laid stress on the statement of Tariq appellant recorded under section 324, Cr.P.C. In reply to Question No,8. For the just decision of the case, I would like to reproduce answer to Question No,8 as under:-- "As a matter of fact Shah Hussain was vagabond type of person and Safdar Ali Shah P.W. Is also vagabond type of person have no other business except to get Jagga tax from the shopkeepers and for that matter they were sign of terror and fear in the vicinity. Safdar Ali Shah P.W. Was involved in many such-like cases. Safdar Ali and Shah Hussain deceased prior to the occurrence came to my shop and demanded me to pay a Jagga tax but I refused stating that I am a poor milk-seller, unable to fulfil their demands. On my refusal Safdar Ali Shah and Shah Hussain deceased started threatening me of dire consequences and quarrelled with me and attacked upon me, and also abused me using filthy language. I made hue and cry and also raised an alarm, in the meanwhile per chance Asad Naveed alias Dangar and Jameel alias Jeela happened to pass from that side and they came to my rescue, they rescued me from the assailants. At that moment Safdar Ali Shah and his companions extended further threats to me stating that I would not be rescued any more by any one. On the date and time of occurrence when I was present alone at my shop, busy in selling milk, few customers were present, Safdar Ali Shah P.W., Shah Hussain deceased and their companions while variously armed came at my shop, they started raising Lalkaras that I would not be spared alive, out of fur I came out of my shop to save my life but in the meanwhile, Safdar Shah P.W. And his companions started firing, at that moment all of a sudden electric light went off, when the electric light restored Shah Hussain deceased was lying injured while his companions were still firing, at that moment Safdar Ali Shah P.W. Was informed by the persons present that the shot fired by him had hit Shah Hussain deceased, thereupon he fled away from the spot. During the course of investigation all the material as stated above was produced before the Investigating Officer. I alongwith Muhammad Yousaf and Nasir Mahmood were found completely innocent, having no weapons whatsoever with us and the complainant party was found aggressor by Gulzar Hussain, S.-I. (the first Investigating Officer), Raheel Amjad, S.H.O./Inspector (the second Investigating Officer) Mushtaq Ahmad and Khadim Hussain, S.S.P.
Range Crimes, Lahore."
' If I believe the version of the Tariq appellant mentioned above in totality then it becomes a case of acquittal but according to my considered opinion, neither the complainant party nor accused approached the Court with clean hands. Both are telling a lie, they have suppressed their roles at the time of occurrence. In my considered opinion, fight had taken place only between Asad Naveed and. Shah Hussain deceased and it was Asad Naveed who fired a fatal shot on the person of the deceased. Had the other four accused persons were having with them fire-arms then the damage should have been at a very large scale, as I have held in earlier paragraph that both the parties have not approached with clean hands. Asad Naveed alias Dangar had already been awarded maximum sentence under section 302(c), P.P.C. So I cannot sentence him to undergo death as held by me in the earlier paragraph because no appeal against this acquittal under section 302(a) or (b), P.P.C. Has been filed by the State or the complainant, so conviction and sentence recorded against Asad Naveed alias Dangar appellant by the learned trial Court is maintained.
' As far as, other three appellants are concerned, no effective role is attributed to them, seven crime-empties were recovered from the spot but none of them matched with any weapon recovered on the pointation of the appellants. So far as, disbelieving the motive part by the learned trial Court is concerned, I have gone through the reasoning given by the learned trial Court, same are justified and I also disbelieve the same. In these circumstances, I do not feel any hesitation in allowing this appeal to the extent of Muhammad Yousaf, Muhammad Tariq and Muhammad Jamil, appellants, accordingly, the conviction and sentence recorded against them by the learned trial Court is set aside. They are on bail and they shall be discharged from their bail bonds. 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.