' RUSTAM ALI MALIK, J.---This judgment will dispose of Criminal Appeal No.172 of 1998, Criminal Appeal No.173 of 1998 and also Murder Reference No.110 of 1998.
2. The appellants namely Muhammad Inayat and Muhammad Yasin were tried by the learned Sessions Judge, Okara in case F.I.R. No. 14 of 1996 registered on 14-1-1996 in Police Station City Depalpur, District Okara, and were convicted and sentenced as under:--
(1) Muhammad Inayat: Under section 302(b)/34, P.P.C. Death and also the direction to pay an amount of Rs.20,000 as compensation to the legal heirs of the deceased.
(2) Muhammad Yasin: Under section 302(b)134, P.P.C. Life imprisonment with the direction to pay an amount of Rs.10,000 as compensation to the legal heirs of the deceased.
3. Vide the, same judgment dated 23-2-1998, the learned trial Court had however acquitted Falak Sher and Naeem accused.
4. The formal F.I.R. Exh.P.B. Had been registered on the basis of statement of Mubarik Hassan complainant who had stated therein that on the day of occurrence i.e. 14-1-1996 he alongwith his paternal uncle Muhammad Aslam son of Noor Samand, Sardar son of Shahbaz and his brother Muhammad Rafique came to Depalpur Kutchery around 1-30 p.m., in connection with a piece of work. The complainant and his companions were standing near the chamber of Sardar Ajmal Hussain, Advocate, while Muhammad Aslam the paternal uncle of the complainant was proceeding towards the seat of Mian Saeed Ahmad Thakkar-kay Wattoo, Advocate when suddenly Naeem alias Shafi armed with a pistol .30 bore, Falak Sher armed with rifle .222 bore, Muhammad Inayat armed with pistol .30 bore and Muhammad Yasin armed with gun .12 bore reached there.
Falak Sher raised Lalkara that their enemy Muhammad Aslam be not allowed to go alive. Naeem accused caught hold of Muhammad Aslam by his collar and Muhammad lnayat accused fired with his pistol, hitting Muhammad Aslam towards the right side, below his arm-pit and Muhammad Aslam fell down and expired at the spot. All the accused fled away towards Depalpur Chowk, Okara Road, while firing with their respective weapons.
5. In the F.I.R. a mention was also made of the motive. It was stated therein that Sarfraz Khan and Anwar Khan who were the father and paternal uncle of Falak Sher and maternal grandfather of Naeem accused had been murdered and regarding the said occurrence a case had been registered against Aslam, etc. And that in the year 1990 three brothers of Muhammad Inayat Oad had been murdered and the case regarding that occurrence had also been registered against Aslam, etc. And on account of the said grievance, the accused in consultation with each other had committed the murder of Muhammad Aslam.
6. The statement of the complainant was recorded by Muhammad Aman Ullah Khan, S.-I./S.H.O.
After the investigation, Muhammad Anayat, Muhaminad Yasin, Muhammad Naeem alias Shafi and Falak Sher was challaned in this case and the case was sent up to the Court of Session for trial. All the four accused were formally charged by the learned trial Court on 19-2-1998 under section 302/34, P.P.C. And to which they pleaded not guilty and the prosecution was thus asked to produce its evidence.
7. The prosecution has examined in this case as many as 10 P.Ws. P.W.10 is Abdul Majeed, Inspector who on 1-2-1996 was posted as S.H.O. In Police Station City Depalpur and on the said day he had taken over the investigation of this case. He arrested Naeem and Falak Sher accused in this case.
Subsequently, as a result of his investigation, they were placed in Column No.2 of the challan. He also deposed that Aman Ullah Khan, S.-I. Had died.
8. P.W.5 is Doctor Ishtiaq Ali, who on 15-1,-1995 had conducted post-mortem examination on the dead body of Muhammad Aslam deceased and had found the following injuries on the dead body:--
(1) A lacerated would 1/2 c.m. Margins were inverted with blackening. The wound was present on right side of chest 10 c.m. From nipple. There were corresponding holes in the clothes.
(2) A lacerated wound 1-1/2 x 1 c.m. With everted margins 23 c.m. From left nipple.
' In his opinion cause of death was Injury No.1 which was sufficient in the ordinary course of nature to cause death and that death had occurred due to hemorrhage and shock caused by fire-arm.
According to him, probable time between injuries and death was within 5 minutes and the probable time between death and post-mortem was within 24 hours. Exh.P.N. Is the copy of post- mortem report while Exh.P.N.1 is the diagram of injuries.
9. P.W.6 Naseer Ahmad is the recovery witness in whose presence Muhammad Inayat accused was arrested by the police and a pistol .30 bore (P.7) loaded with four bullets was taken into possession (by the Investigating Officer). He stated That the bullets P.8/1-4 alongwith a magazine Exh.P.9 was also taken into possession (by the Investigating Officer) vide memo. Exh.P.J. On the same day, in his presence, Yasin accused was arrested by the police from the same place and was found in possession of .12 bore gun P.10 (with a small barrel). The gun P.10 and three live cartridges P.I1/1-3 were taken into Asession (by the Investigating Officer) vide recovery memo. Which was also attested by him.
10. In this case the eye-witness account is furnished by P.W.8 Mubarik Hassan complainant and P.W.9 Sarfraz. Both of them deposed on the same lines as indicated in the F.I.R.
11. On 20-2-1998, the learned Prosecutor tendered in evidence report of Chemical Examiner Exh.P.Q., report of Serologist Exh.P.R. And the report of Forensic Science Laboratory Exh.P.S. And closed the case for the prosecution.
12. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances.
Muhammad Inayat accused/appellant in answer to the question as to why this case against him and why the P.Ws. Had deposed against him, replied that he had been falsely involved in this case due to previous enmity and the P.Ws. Had falsely deposed against him. In answer to the same, question, Yasin accused/appellant replied as following:-- "I have been falsely involved in this case due to relationship with Inayat accused. The P.Ws. Have deposed falsely against me due to relationship with Aslam deceased. I have been falsely involved in this case due to suspicion."
' Except Falak Sher acquitted accused, no other accused produced any evidence in defence. None of the four accused made statement on oath under section 340(2), Cr.P.C. In his defence, Falak Sher, the acquitted accused examined D.W.1 Muhammad Aslam Shad, Advocate and D.W.2 Mian Jahangir Ahmad Mohar, Advocate. Both of them deposed in favour of Naeem and Falak Sher accused (who have been acquitted in this case by the learned trial Court).
13. After reading the statements of. P.Ws. In this case at some length, the learned counsel for the accused/appellant Muhammad Yasin has argued that according to the prosecution story Muhammad Yasin accused was armed with a gun .12 bore and he alongwith Falak Sher acquitted accused had started firing in the Air. However there is no allegation against him that he had caused any injury to the deceased or to any of the P.Ws. He has argued that there is nothing on record to indicate that Yasin accused had the common intention with his co-accused namely Muhammad Inayat. He has argued that if Yasin accused shared common intention with Muhammad Inayat accused, there was nothing which could prevent him from firing at the deceased or at any of the P.Ws. But as he has not done, so even according to the prosecution story, there was hardly any justification for his conviction under section 302(b)/34, P.P.C. And that he was clearly entitled to be acquitted.
14. The learned counsel for Muhammad Inayat accused/appellant has argued that the statements of P.W.8 and P.W.9 dO not inspire confidence as both of them are interested witnesses and had reason to depose falsely against the appellant. He has argued that the prosecution evidence is contradictory and that ocular account is at variance with the medical evidence in this case. He has argued that the evidence regarding the existence of motive was very weak and although the occurrence had taken place within the Court premises but no independent witness was cited or produced by the prosecution and that the P.Ws. Examined in this case are closely related to each other and were inimical towards Muhammad Inayat accused/appellant on account of previous enmity. He has argued that even the recovery witnesses were not independent and that the recovery proceedings were actually fake and no one from pubic at large had been joined to witness the recovery proceedings. Lie has argued that the investigation of this case was dishonest and that Muhammad Inayat accused/appellant has been falsely implicated in this case by the complainant, in connivance with the police. He has further argued that on the basis of the same evidence the learned trial Court had acquitted two co-accused of the appellant namely Muhammad Naeem and Falak Sher and as such there is no justification for the conviction of Muhammad Inayat accused/ appellant on the basis of evidence which has been disbelieved by the learned trial Court qua his aforesaid co-accused namely Naeein and Falak Sher. He has argued that the prosecution was unable to prove the charge against Muhammad Inayat accused/ appellant beyond any shadow of doubt and that the judgment of the learned trial Court cannot be legally sustained and therefore Muhammad Inayat accused/ appellant is entitled to be acquitted.
15. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient evidence on record to warrant conviction and that the learned trial Court had rightly convicted both the application under section 302(b)/34, P.P.C. And that the charge against the appellants was fully established and as such both the appeals filed by Muhammad Inayat and Yasin accused/appellants are liable to be dismissed.
16. We have carefully considered the arguments. As already mentioned above, the eye-witness account in this case is furnished by P.W.8 Mubarik Hassan and P.W.9 Sarfraz. P.W.8 Mubarik Hassan is also the complainant in this case. The occurrence had taken place in the Court's premises (Kutchery) at Depalpur around 1/1-30 p.m. According to P.W.8, Muhammad Inayat accused/appellant had fired at the deceased with the pistol .30 bore and which hit in his right flank under the arm-pit. Yasin accused/appellant was also armed with gun .12 bore, with a small barrel.
Neither P.W.8 Mubarak Hassan complainant nor. P.W.9 Sarfraz allege that Yasin accused had also fired at the deceased. However, P.W.8 did not allege that Yasin and Falak Sher accused had started firing in the air when Aslam deceased was hit by the shot fired by Muhammad Inayat and had fallen on the ground. P.W.5 is the Doctor who had conducted the post-mortem examination on the dead body, had described the injury on the person of the deceased as having been caused with fire-arm and the same had proved fatal.
17. According to P.W.8 Mubafik Hassan about 15 to 30 years back, father of Falak Sher accused and maternal grandfather of the Naeem was murdered and case regarding that occurrence was registered against Aslam deceased. According to him about 6/7 years ago three brothers of Muhammad Inayat accused had been murdered and the case in that respect had also been registered against Aslam deceased. He deposed that it was on account of the said grudge that this occurrence had taken place. It appears from record that the crime empties P.12/1-2 were collected from the spot which were sent to the Forensic Science Laboratory for comparison. With the pistol allegedly recovered from Muhammad Inayat accused and Vide report of the Forensic Science Laboratory Exh.P.S. The crime empties had been fired from the pistol .30 bore (allegedly recovered from Muhammad Inayat accused). The reports of Chemical Examiner and of the Serologist which are Exh.P.O. And Exh.P.R. Respectively are alt's positive.
18. In view of what has been discussed above, it is clear that the prosecution has been unable to produce any convincing evidence to establish that Muhammad Yasin accused/appellant shared common intention with his co-accused Muhammad Inayat to cause Qatl-i-Amd of Muhammad Aslam deceased. Even according to the prosecution story he had not caused any injury to the deceased or the P.Ws. So conviction recorded by the learned trial Court against Muhammad Yasin accused and the sentence awarded to him in this case cannot be legally sustained and thus he is entitled to be acquitted. However, so far as Muhammad Inayat accused/appellant is concerned, the existence of motive is clearly proved. It is also established that he had enmity with Muhammad Aslam deceased because his three brothers had been murdered- and Muhammad Aslam deceased was an accused in the said case. Ocular account furnished by P.W.8 and P.W.9 fully connects him with the offence. The relationship of the P.Ws. With the deceased or their inter se relationship is not sufficient to discard their testimony. The pistol recovered from him i.e. Inayat was found wedded with the crime empties. The medical evidence furnished by P.W.5 fully corroborates the ocular account. There is also the recovery evidence and which fully corroborates the prosecution story. It is established on record that the shot fired by him at the deceased had proved fatal and resulted in his death and that he had sufficient motive for the commission of the offence.
The defence version of Muhammad Inayat accused/appellant does not inspire confidence. In fact by saying that he had been falsely implicated in this case due to previous enmity he has merely indicated the existence of enmity between the parties. In this case there are no mitigating circumstances in favour of Muhammad Inayat accused/appellant and as such he has been rightly awarded the normal punishment under section 302(b), P.P.C.
19. In view of what has been stated above, we accept the appeal filed by Muhammad Yasin appellant Criminal Appeal No.173 of 1998 and as a result his conviction on the charge under section 302(b)/34, P.P.C. Is set aside and by extending to him the benefit of doubt we acquit him of the charge. If not required in any other case, he i.e. Muhammad Yasin accused/appellant be set at liberty forthwith. The appeal filed by Muhammad Inayat accused/appellant (Criminal Appeal No.172 of 1998) is however dismissed and the sentence of deat awarded to him along with the direction for payment of compensation under section 544-A, Cr.P.C. Is upheld.
20 . The sentence of death awarded to Muhammad Inayat accused/appellant is confirmed.
21. Murder Reference (No.110 of 1998) is answered in the affirmative.