This judgment will dispose of Criminal Appeal No-517 of 2001 filed by Mushtaq Ahmad and Riaz, Ahmad sons of Manzoor Ahmad who were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and to pay compensation of Rs.50,000 each, in default six months' S.I. With the benefit of section 382-B, Cr.P.C. By learned Additional Sessions Judge, Samundri, District Faisalabad vide judgment dated 8-3-2001.
Criminal Revision No.233 of 2001 filed by Hafeez Ahmad, complainant for enhancement of sentence of convicts shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 23-5-1999 at about 3-00 a.m. The complainant alongwith his brother-in-law (Bahnoi), sister and other family members were sleeping upon the roof of their residential house when suddenly there came Mushtaq Ahmad, Riaz Ahmad sons of Manzoor Ahmad and Manzoor while armed with Churras while jumping over the wall when the bulb was lit, marked the complainant while brandishing Churras and extending threat, raised Lalkara to teach a lesson to Idrees, Bahnoi of the complainant for implicating Mushtaq in the theft case and giving beating. Muhammad Idrees who was sleeping at that time was given injuries with Churras by Mushtaq. Thereafter Idrees was inflicted Churra blows by Mushtaq and Riaz and the injured fell down. Abdul Ghafoor while armed with .30 bore pistol remained standing in the street. Accused Riaz also gave Churra blows to Mst. Hakmat Bibi. On alarm, apart from the complainant, Faryad who was sleeping in the street were up and saw the accused Mushtaq and Riaz while descending from the roof top of room of Ali Muhammad and Abdul Ghafoor accused standing in the street.
The motive alleged was that Mushtaq Ahmad, accused had committed theft in the house of Muhammad Idrees, was caught red-- handed and given beating by the deceased three days prior to the occurrence.
3. Investigation of the case when taken over by Mian Manzoor Ahmad, Inspector (P.W.12). He after registration of the formal F.I.R., went to hospital where the dead body of Muhammad Idrees deceased was lying prepared injury statement Exh.P.C., inquest report Exh.P.C/1, then inspected the spot, prepared the site-plan Exh.P.N., took into possession the blood-stained earth vide memo.
Exh.P.F.; Khais, Pillow, Dopata and Parna were secured vide memo. Exh.P.S. And on 8-6-1999 arrested Mushtaq, Manzoor and Abdul Ghafoor accused. On 11-6-1999 Mushtaq accused got recovered Churra P.2 and rifle P.3 which were secured vide memos. Exh.P.D. And Exh.P.E. After completion of 'the investigation, all the accused named in the F.I.R. Were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learnc3 S.P.P. Tendered in evidence reports of the Chemical Examiner Exh.P.Q., P.R., report of the Serologist Exh.P.S. And closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they implicated false implication. However, after conclusion of the trial, Abdul Ghafoor and Manzoor were acquitted.
5. Learned counsel for the appellants in support of this appeal submits that motive set up by the prosecution is not believable; Hafeez Ahmad P.W.8 being not the resident of place of occurrence was a chance witness; Mst. Hakmat Bibi the injured was not produced by the prosecution; Faryad Ali (P.W.9) having been involved in a dacoity case, he was not a truthful witness; this witness did not see the appellants causing injuries to the deceased; Mst. Akhtar Bibi (P.W.10) being widow of the deceased was an interested witness, so no reliance can be placed on her testimony and that said Mst. Akhtar Bibi P.W. Later on contracted marriage with Faryad Ali P.W.; no recovery was effected from Riaz accused-appellant; the alleged recovery Churra at the instance of Mushtaq appellant has not been believed by the trial Court; Mst. Nausheeh the daughter of the deceased who was natural witness of the occurrence was never produced by the prosecution, Manzoor, Riaz and Abdul Ghafoor accused were found innocent by the police and placed in Column No.2 of the report under section 173, Cr.P.C.; it was a night time occurrence and that there is conflict between ocular account and the medical evidence. Concluding his submissions, learned counsel submits that if the submissions made by him are taken together, result would that the prosecution has miserably failed to prove its case against the appellants and they, are entitled to acquittal.
6. On the other hand, learned counsel for the complainant who has also filed revision petition for enhancement of sentence of the convicts submits that the appellants are named in the F.I.R. With specific roles, there was no previous background of enmity, so there was no question of false implication, the Churra recovered on the pointation of Mushtaq appellant was found to be stained with human blood; gun of the deceased which Mushtaq appellant had taken away at the time of occurrence was also got recovered by Mushtaq appellant and that the prosecution has been successful in proving its case against the appellants.
Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.
7. I have heard learned counsel for the parties and have gone through the record. In the instant case, four accused namely, Mushtaq Ahmad, Riaz Ahmad, Abdul Ghafoor and Manzoor Ahmad were named. Abdul Ghafoor and Manzoor were acquitted of the charge by learned trial Court. The role ascribed to them was that of standing in the street so that nobody could come from the side of the complainant. Three eye-witnesses namely Hafeez Ahmad, Faryad Ali and Mst. Akhtar Bibi had no animosity to falsely depose against the appellants. Mst. Akhtar Bibi, P.W.10 being widow of the deceased was a natural witness of the occurrence as the occurrence had taken place in her house, so her testimony cannot be doubted by any stretch of imagination. Mst. Hakmat Bibi though was injured was given up on being unnecessary. I have gone through the report of her medical examination. She was aged about 85 years, so this may be the reason that she was given up. Even otherwise the Court has to see the quality of evidence and not the quantity. No doubt, Faryad Ali, P.W. Is not witness of having seen the accused causing injuries to the deceased but he had seen Mushtaq and Riaz accused jumping from roof top of the house after the occurrence. The Chhura recovered on the pointation of Mushtaq appellant was found to be stained with human blood as per report of the Serologist. Conviction was recorded against the appellants on a private complaint as the police had declared Manzoor, Riaz and Abdul Ghafoor was innocent. The motive also laid with Mushtaq appellant as few days prior to the occurrence he was caught red-handed while committing theft by Muhammad Idrees (deceased) and given beating.
So far as Mushtaq appellant is concerned, the motive laid with him, Chhura got recovered by him was found to be stained with human blood as per report of the Serologist he was never found innocent by the police, thus, I am of the considered view that the prosecution has been successful in proving its case against him. The conviction and sentence recorded against Mushtaq appellant by the trial Court is maintained in toto and appeal to this extent is dismissed.
Riaz appellant is real brother of Mushtaq, appellant the main accused. Nothing incriminating was recovered on his pointation. He was found innocent by the Police. The motive also did not lay with him. So in these .Circumstances possibility of his false implication cannot be ruled out.
Resultantly, appeal to this extent is accepted. Conviction and sentence recorded against him by the trial Court is set aside and he is acquitted of the charge. Riaz Ahmad, appellant is in jail. He shall be released forthwith, if not required to be detained in any other case.
Criminal Revision filed by the complainant is dismissed.