Ali Asghar, Ali Akbar, Ali Raza and Muhammad Akhtar Khan sons of Younis Khan were tried by the learned Addl. Sessions Judge/Judge, Special Court, Sheikhupura in case FIR No, 259 dated 20.7.1998 under Section. 302/109/34 PPC registered at P.S. Saddar, Nankana Sahib at the instance of Ghulam Rabbani Khan, PW4 for murder of Ghulam Murtaza, brother of the complainant and vide impugned judgment dated 26.4.2001, Ali Asghar, All Akbar and Ali Raza were convicted under Section 302(b)/34 PPC and sentenced to imprisonment for life with fine of Rs, 50,000/- each to be paid as compensation to the legal heirs of the deceased, failing which they had to undergo six months SI.
While Muhammad Akhtar Khan was convicted under Section 109/34 PPC and sentenced to 10 years RI through the same judgment. He was also ordered to pay fine of Rs, 10,000/-, in default thereof to undergo two months SI. Benefit of Section 382-B Cr.P.C. was, however, extended in favour of all the appellants.
All the accused/appellants filed Crl. Appeal No, 688/2001 against their conviction and sentence.
The sentence of Muhammad Akhtar Khan recorded by the trial Court was suspended by this Court vide order dated 25.6.2001 and he was released on bail. Thereafter, he was murdered and FIR No, 138/2002 dated 17.5.2002 was recorded in this regard, therefore, to his extent the appeal has abated. The brief facts of the case as narrated by the complainant in the FIR Ex. PA are that he was resident of Chak No, 369/GB Rattan Wala and on the day of occurrence at 12.15 p.m. he alongwith Muhammad Usman, PW5, Rana Liaqat Ali son of Rana Muhammad Yaseen and Muhammad Ashiq son of Muhammad Shafi resident of Chak No, 5/GB was present in his haveli, when all of a sudden they heard sound of firing shots. On which, they looked outside towards road over the wall where one motorcycle without numberplate was in starting position and Rana Ghulam Murtaza (deceased), brother of the complainant, who was sitting on the driving seat of tractor was. encircled by accused Ali Akbar, Ali Asghar, Ali Raza sons of Muhammad Younis all armed with Kalashnikovs and they fired burst from their Kalashnikovs and fire made by Ali Akbar hit Rana Ghulam Murtaza on his right side, neck and jaw and burst made by Ali Raza landed on left arm and chest and burst of Ali Asghar hit on the left knee and right side of the foot. Rana Ghulam Murtaza fell down from the tractor and all the tree accused continued firing on his various parts of the body, who succumbed to the injuries at the spot. On which, the accused fled away on the motorcycle by raising lalkara that they had taken the revenge. On 9.7.1998 at about 10/11 a.m. Muhammad Ilyas, Abdul Qayyum resident of Kotla Kahlwan P.S. Shahpur were present in connection with their work in the chamber of Muhammad Akhtar Khan, co-convict in Sessions Court, Nankana Sahib where they saw Muhammad Akhtar Khan, Advocate and his brother Ali Asghar alongwith two unknown persons and in their presence Muhammad Akhtar Khan had asked his brother that the villager say we should wear bangles and leave the village if you do not make any arrangement and the motive was that 24/25 years ago Muhammad Younis father of the accused was murdered and father of the deceased Ghulam Murtaza and the complainant alongwith others were challaned and they were ultimately acquitted. Ashraf Hussain Zaidi, SI/PW9 after registration of the formal FIR Ex. PA on the statement of the complainant arrived at the spot and took the dead body into possession and prepared the injury statement through memo Ex. PH and inquest report Ex. PJ and dispatched the dead body for postmortem examination. He also prepared the rough site-plan Ex. PK and took the blood stained earth through memo Ex. PB which was attested by Liaqat Ali and Usman, PW5. He also collected from the spot 39 empties of Kalashnikovs which were taken into possession through memo Ex. PC.
He also took into possession a FIAT Tractor through memo Ex. PE. After postmortem examination last worn clothes of the deceased were taken into possession by him through memo Ex. PD.
Thereafter, the investigation of the case was entrusted to Sheikh Ashraf Latif, Inspector PW10. On 28.7.1998 he arrested Ali Asghar and Ali Akbar. On 7.9.1998 he also arrested Ali Raza. They joined the investigation and got their version recorded and produced the witnesses to prove their innocence and pleaded not guilty. Muhammad Akhtar Khan had also been appearing before him who took the plea of alibi and according to his investigation, all the four accused were innocent. After completion of the investigation challan against the accused was submitted and the trial Court framed the charge which was denied by them and they claimed trial. During the trial the prosecution examined as many as 10 witnesses to prove the guilt of the accused. The medical evidence was furnished by Dr. Shabbir Ahmed, PW8 who conducted the post-mortem examination on the dead body of Rana Ghulam Murtaza and found the following injuries on his body:--
1. A fire-arm wound of entry with blackening around the wound measuring 4 x 4 cm on right side of the jaw, 5 cm below and front of the right tempromandibular joint.
2. A fire-arm wound of entry 1 x 1 cm on the right jaw 1 cm below the Injury No, 1.
3. An abrasion 3 x 2 cm skin deep on right side of the head, 4 cm above the right eye.
4. A wound of exit 2 x 2 cm on the top of the head in the mid line, 7 cm above the bridge of nose.
5. A wound of exit 13 x 10 cm on the left eye, mass of the left eye missing, bones coming out of the wound and adjacent parts of the skull and orbit missing. Lateral border of the wound was 5 . cm from the left ear.
6. A wound of entry with blackening around the wound of diameter 2 cm on the left side of the neck, 3 cm from the mid. line, 2 cm above the left clavical.
7. A wound of entry 4 x 4 cm on the anterior of the right chest, 4 cm above the right nipple with blackening around the wound.
8. A wound of entry 2 x 2 cm on the anterior of right chest 4 cm above the Injury No, 7.
9. A wound of entry 1 cm in diameter on the anterior right chest 2 cm below the right mid clavicle point.
10. A wound of entry with blackening around the wound of diameter 2 x 2 cm on the front of the right neck, 1 cm above the medial end of the right clavicle.
11. A wound of exit 1 cm in diameter on the tip of the right shoulder.
12. A wound of exit 1.5 x 1.5 cm on the right shoulder 3 cm medial to Injury No, 11.
13. A wound of entry 13 x 9 cm on the back of the right arm with burning of skin, muscles shattered, bone hemerus fractured.
14.A fire-arm wound of entry 1.5 x 1.5 cm on the back of the right forearm 6 cm below the elbow joint.
15.A fire-arm wound of entry 1 x 1 cm in diameter on the lower part of anterior right chest, 10 cm below the right nipple.
16.A fire-arm wound of entry 4 x 4 cm on the lower part of the right chest, 2 cm below the Injury No, 15.
17. Three wounds of entries measuring 1.5 cm diameter on the right side of the abdomen, 10 cm from the unblicus.
18. A fire-arm wound of entry 1.5 x 1.5 cm on the right thigh 1 cm above the right knee joint.
19. A lacerated wound of exit 6 x 2 cm on the right leg, 3 cm below the lower border of patella.
20. A lacerated wound of exit and entry on the inner border of left foot, wound was teared 6 x 6 cm in size.
21. A fire-arm wound of entry 1 cm in diameter on the medial side of the right thigh, 10 cm below the right inguinal ligament.
22. A wound of exit 1 cm diameter on the inner side, back of the thigh on the right side.
23. A wound of entry on the front of the left middle of the thigh of 1 cm diameter.
24. A wound of exit 2 cm diameter on the back of left chest, 7 cm from the mid line, below the inferior angle of the left scapula.
25. A wound of exit 3 cm above.
26. A wound of exit 3 x 3 on the back of the right chest, 7 cm from the mid line, 3 cm below the inferior angle of scapula of right side.
27. A wound of exit of 2 cm diameter on the back of the neck, on the right side, 6 cm from the tip of the right shoulder.
28. A wound of exit, 1.5 x 1.5 cm on the buttock of the right side, 5 cm from the mid line.
The ocular account was furnished by Rana Ghulam Rabbani Khan, PW 4 who supported the version of the FIR and narrated the motive for the occurrence as alleged by him in the FIR. Rao Muhammad Usman, PW 5 was also eye-witness of the occurrence. He supported the complainant and his statement was in line with that of the complainant. He also attested recovery memo Ex. PB, Ex. PC, Ex. PD and Ex. PD whereby blood stained earth, empties, last worn clothes of the deceased and FIAT Tractor were taken into possession by the I.O. respectively. Muhammad Adam, PW1 identified the dead body at the time of post-mortem examination. Muhammad Sarwar, FC transmitted the sealed parcel at the office of Chemical Examiner and empties at the office of Forensic Science Laboratory. Muhammad Ilyas, PW 3 was the witness of conspiracy hatched by. Muhammad Akhtar Khan (deceased). Muhammad Aslam, HC/PW6 escorted and dead body of Ghulam Murtaza, deceased for post-mortem examination. Muhammad Afzal Patwari, PW7 prepared the site-plan of the place of occurrence.
The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Ex.PL and that of Serologist Ex. PM.
The statement of the accused were recorded under Section 342 Cr.P.C. They denied the allegation and claimed their innocence and false involvement due to enmity. in reply to question as to why the case against him and why the PWs deposed against him, Ali Asghar stated as under: "We have been falsely involved in this case due to past enmity and rivalry. The witnesses are interested and have deposed falsely inclusion with our political opponents. Ghulam Murtaza deceased was a partisan and closet associate of Ashraf and Aslam sons of Qadir Bux caste Gujjar.
Ashraf Gujjar and Aslam Gujjar have long standing enmities and blood feuds in the entire area with so many persons. The group/faction lead by Aslam and Ashraf Gujjar wanted to command and control the entire area with terror and would not tolerate any opposition. They always tried to eliminate their opponents by all means. In the last local council election for Zila Council, Sheikhupura held in 1998, I and my brother Akhtar Khan co-accused contested election for Zila Council Sheikhupura from Constituency Nos, 112 and 105 respectively. I defeated Taj Din a partisan of Murtaza deceased and said Gujjar brothers whereas Akthar Khan co-accused lost the election against above mentioned Aslam Gujjar. On account of political emergence of our family Ashraf Gujjar group wanted to eliminate us. On the fateful day Ghulam Murtaza was done to death by unknown person and none from the PWs was present there but after the occurrence Ashraf Gujjar, Aslam Gujjar and other political opponents of our family prevailed upon the complainant party and they inclusion with each other concocted a false store and we all the four brothers were booked in this false case."
The statements of the other appellants were similar. The trial Court also examined Muhammad Shahbaz, 1338-C, as CW 1.
The trial culminated into conviction and sentence of the appellants as mentioned above. The appellants have filed Crl. Appeal No, 688/2001 against their conviction and sentence while the complainant has filed Crl. Revision No, 380/2001 for enhancement of the sentence. Both the matters are being decided by this judgment.
8. Learned counsel for the appellants has argued that it was an witnessed occurrence. The presence of complainant Ghulam Rabbani Khan, PW4 and Muhammad Usman, PW5 at the spot has not been established. The accused were declared innocent in successive investigations and no recovery of weapons of offence was effected. The motive relates to 24 years ago and during this period no untoward incident/occurrence took place between them, therefore, there was no reason for the appellants to commit the instant crime, particularly, by Ali Asghar Member.of Union Council and Ali Raza, Sub-Engineer. The medical evidence does not support the ocular account as most of the injuries are on the right side of the deceased but according to the ocular account the accused had encircled the deceased when they fired the deceased. The firing of burst in succession was not possible. The appeal has been opposed by learned counsel for the complainant by arguing that it was a day light occurrence and the accused are nominated in promptly recorded FIR and the motive has been admitted and there is no reason for their false involvement and the trial Court had also not given any reason for awarding lesser penalty, therefore, he has prayed for enhancement of the sentence.
Learned counsel for the State has adopted the arguments as advanced by learned counsel for the complainant.
I have heard the learned counsel for the parties and also examined the record.
Although the accused have admitted that their father was murdered 24/25 years ago and father of the deceased and of the complainant was challenged alongwith others, but admittedly, during this period no untoward incident took place between the accused and the complainant party despite the fact that both the parties reside in the same village. The complainant himself admitted in his cross-examination at page-4 that it is correct that the accused present in the Court never attempted to attack any of the accused of the murder case of Younis, after their acquittal.
Furthermore, motive is double edged weapon and can also be used for false involvement of the accused. It is also to be noticed as why Ghulam Murtaza deceased was picked up by sparing the complainant and other family members or the accused who were challaned alongwith father of the deceased, therefore, I find that the motive set up by the complainant has not been proved.
Enmity between the parties is admitted. It has also been admitted by him that they remained with the group of Aslam and Ashraf Gujjar and there is lot of party faction in their village and surrounding villages. Number of cases of murder or attempts of murder have been instituted, therefore, I find that the motive as alleged by the complainant has not been established.
As far as other facts are concerned, in. the FIR Ex. PA it has been alleged by the complainant that three accused namely, Ali Asghar, Ali Akbar and Ali Raza armed with Kalashnikovs encircled the deceased who was on driving seat of the tractor when they fired burst from the Kalashnikovs but according to the post-mortem examination report almost all the injuries, except 6 & 23, are on the right side of the deceased. The dimension of all the injuries show that it could be caused by one and single shot. Dr. Shabbir Ahmed, PW8 admitted in his cross-examination that he cannot contradict that all the injuries sustained by the deceased could be result of single burst if the man was sitting on the driving posture. In absence of recovery of weapon of offence the possibility cannot be ruled out that it was job of only one person and the complainant party has thrown the net widen to implicate all the brothers. According to the complainant Ghulam Rabbani, PW4, the distance between the haveli and village is 7/8 acres and he had gone to haveli at 11 a.m. alongwith Rana Liaqat Ali with lunch for the servant and out of the servants only Jaffar was there but said Jaffar was not examined. tte also stated that Rao Muhammad Usman, PW 5 owned Rs, 5000/- to Asif, PW for the bricks which he had to pay there but Asif was not present but this fact has not been mentioned by Rao Muhammad Usman, PW 5. In FIR he has stated that Ali Akbar initiated the firing while in his cross-examination he stated that he saw over the wall of the haveli that accused Ali Asghar was firing burst at the deceased which shows that he had not seen the occurrence. He was duly confronted with the contents of the FIR wherein he stated that correctly all the accused fired burst at the deceased. There is clear contradiction in the statement of Ghulam Rabbani, PW4 and Rao Muhammad Usman, PW5. PW5 firstly stated that when they saw all were firing but he improves his statement by stating that Ali Akbar was firing when they saw from haveli. The conduct of both Ghulam Rabbani, PW4 and Rao Muhammad Usman, PW5 is unnatural as they saw the accused firing but neither they raised any alarm nor they tried to intervene. After going through the statement of Ghulam Rabbani, PW4 and Rao Muhammad Usman, PW5, I find that they were not present in their haveli where the alleged occurrence took place and it was an unwitnessed occurrence. The possibility cannot be ruled out that only one of the accused may responsible, but the complainant party has widened the net to implicate all the four real brothers in the case which creates serious doubt about the prosecution story. The ocular account rather only not corroborated but it was contradictory to the medical evidence. The accused remained on physical remand but no incriminating material was recovered. They produced many persons in their defence to prove innocence during the investigation conducted by Sheikh Ashraf Latif, Inspector PW10 which was also approved by the DSP. The ocular account furnished by Ghulam Rabbani, PW4 and Rao Muhammad Usrnan, PW5 has not been corroborated by any other independent source.
Party faction is also admitted in the area and political rivalry between Ashraf, Asghar sons of Qadir Bakhsh Gujjar and the accused party has been admitted and it has also been admitted by the I.O. that the deceased was Guard-man of Ashraf Gujjar. He was involved at least in three cases e.g. FIR No, 269/91 Ex. DE, FIR No, 270/91 Ex. DH and FIR No, 85/98 Ex. DC. In FIR No, 269 he was witness. In FIR No, 270 he was an accused and FIR No, 85/98 he was again eye-witness in which Ashraf son of Qadir Bakhsh was the complainant. The political rivalry has been admitted, therefore, false implication at the instance of Ashraf and Asghar Gujjar cannot be ruled out. The prosecution has failed to prove its case beyond shadow of doubt, therefore, by extending benefit of doubt I allow this appeal. The conviction and sentence of the appellants is set aside and they are acquitted of the charge. They are ordered to be released forthwith if not required to be detained in any other case.
Crl. Revision No, 380/2001 is dismissed having no force.