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Criminal Appeals No. 237, 205, Criminal Revision No.558 and Murder Reference No. 72 of 1983, heard on 2nd June, 1987.

---S.148/302/149--Evidence, appreciation of--Eye-witnesses alleging firing by twelve assailants with .12 bore guns at deceased for about 10/15 minutes--Only two wounds of entry found on person of deceased--Not a single empty recovered from spot--Absence. of any crime empty rendering recoveries of guns from different accused of no consequence--Fatal shot not ascertainable as to who fired it--Seven co-accused acquitted by Trial Court--Acquittal neither challenged by State nor by complainant--Some of accused convicted only under S.148, P.P.C. and only one convicted under 5.302/148/149, P.P.C.--No explanation forthcoming for such finding--Prosecution, held, had utterly failed to establish charges under S.148 and also under S.302/149 against respective accused--Conviction and sentences set aside in circumstances.

Ashtar Ausaf Ali and Haji Muhammad Rafi Siddiqui for Appellant.

Ch. Dil Muhammad Tarar for the State.

D . M . Awan for the Complainant.

Date of hearing: 2nd June, 1987.

--Mian Muhammad (30) son of Sher Muhammad has been convicted by a learned Additional Sessions Judge, Khushab, vide judgment dated 27-4-1983, under section 302, P.P.C. for causing the murder of Muhammad Iqbal (50) and has been sentenced to death and a fine of Rs. 5,000 or in default two years' R.I. It has been directed that out of the fine, if realized, Rs. 3,000 would be paid to the legal heirs of the deceased.

Vide the same judgment co-accused Falak Sher (35) son of Alam Sher, Muhammad Amir (32) son of Ghulam Hussain, Muhammad Hayat (45) son of Allah Yar, Sher Muhammad (40) son of Lai Khan, Sultan (40) son of Jaffar and also Mian Muhammad aforesaid were convicted under section 148, P.P.C. and sentenced to three years' R.I. each. Sultan has since died after having suffered the imprisonment. The other co-accused, namely, Muhammad Zaman, Umar Iiayat, Haqnawaz, Jehangir Khan, Muhammad Akhtar, Muhammad Afzal and Ramzan Ali were acquitted.

Mian Muhammad aforementioned convict who has been sentenced to death has challenged his convictions and sentences through jail vide Criminal Appeal No. 237 of 1983, Muhammad Hayat, Muhammad Amir, Sher Muhammad and Falak Sher, who have been convicted under section 148, P.P.C. have challenged their conviction and sentence through Criminal Appeal No. 205/83. The matter also stands referred to us under section 374, Cr.P. C. seeking confirmation of death sentence awarded to Mian Muhammad. The complainant Haji Ghulam Qadir has filed Criminal Revision No. 558 of 1983, challenging the acquittal of Sultan, Amir Muhammad, Muhammad Hayat, Falak Sher and Sher Muhammad of the charge under section 302/149, P.P. C. This judgment shall dispose of the aforementioned appeals, criminal revision as also the murder reference.

2. The occurrence in this case took place on 27-3-1981 at 8-00 p.m. in the Dera of Muhammad Iqbal deceased situate at village Katha Saghral, district Khushab at a distance of two furlongs from Police Station Katha Saghral.

The occurrence was reported to the police through F.I.R. Exh. P.K. which was lodged at the police station by Haji Ghulam Qadir P.W.9, the paternal-uncle of the, deceased, on the same day at 8-20 p.m. which was recorded by Muhammad lqbal S.I. P.W.12.

3. About motive it has been alleged that Sardar Khan, a relative of Muhammad Akhtar, Muhammad Afzal, Ramzan Ali, Umar Hayat, Haq Nawaz and Muhammad Zaman was murdered 20/21 years prior to the present occurrence. The deceased and the complainant were challaned for his murder but were acquitted. As against Jehangir Khan, acquitted accused, it has been alleged that he was falsely involved at the behest of the deceased in the murder case in which Khizar Hayat and Nazar Hayat were killed in 1975. As against Mian Muhammad, the motive alleged is that he avenged the murder of his brother Ata Muhammad, who was killed two years earlier by the complainant and the deceased. It has further been alleged that there was some water dispute between the parties also. The accused were alleged to be related inter se.

4. Regarding the main occurrence it has been stated that on the eventful night at 8-00 p.m. the deceased was present in his Dara alongwith Muhammad Sher P.W.9. The appellants and the acquitted accused, other than Jehangir Khan, all armed with .12 bore guns came to the Dara of the deceased. Mian Muhammad raised Lalkara and opened the attack by firing at the deceased hitting him on his right shoulder. Muhammad Iqbal deceased fell down. All others opened fire at the deceased and continued firing for 10/15 minutes. Muhammad Sher P.W.9 on account of fear of the assailants hid himself behind the door from where he witnessed the occurrence in the light of the lantern which was lit in the Dera. On the alarm raised by Muhammad Sher, Bhai Khan P.W.10 and Fateh Sher (not produced) also came running to the spot. The accused were seen by Bhai Khan and Fateh Sher while running away. Muhammad Iqbal succumbed to the injuries. His uncle Haji Ghulam Qadir was informed of the occurrence by Muhammad Sher, whereafter Haji Ghulam Qadir went to the police station and lodged the first information report.

Muhammad Iqbal S. I. P. W.12 after recording the first information report went to the spot. He prepared the injury statement and the inquest report in respect of the dead body of Muhammad Iqbal, which was lying at his Dara and despatched the same to the mortuary for post-mortem examination through Muhammad Sadiq F.C. P.W.2.

5. Autopsy on the dead body of Muhammad Iqbal deceased was performed by P.W.4 Doctor Muhammad Riaz All, the then Medics Officer, Civil Hospital, Khushab on 28-3-1981 at 9-00 a.m. He noticed the following injuries on the dead body:-

(1) A lacerated wound, 1 x 1 ", on right deltoid region.

(2) A lacerated wound, 2 " x 1", on inner side of the right upper arm, below the armpit.

(3) Two lacerated wounds, 1/2" x 1/3", and 1/3" x 1/3", near each other on right side of the chest. ,

(4) A lacerated wound, 1/3" x 1/3", on left lateral side of the chest at lower part.

The edges of injuries Nos. 1 and 3 were inverted while those of injuries Nos. 2 and 4 were everted. He opined that injuries Nos. 1 and 3 were wounds of entrance while injuries Nos. 2 and 4 were wounds of exit. He further opined that death had occurred due to haemorrhage (internal and external) resulting from multiple injuries. According to him injuries Nos. 3 and 4 were sufficient to cause death in the ordinary course of nature and were thus fatal while injuries Nos. 1 and 2 were grievous.

6. Muhammad Zaman, Umar Hayat, Muhammad Akhtar, Muhammad Afzal, Ramzan Alia Haq Nawaz, Muhammad Hayat and Sher Muhammad accused were arrested one 24-4-1981 by Muhammad lqbal S.1. P.W.12. Sultan was arrested on 27-4-1981 by the same police officer. Amir, Falak Sher and Mian Muhammad were arrested respectively on 8-4-1981, 11-4-1981 and 20-4-1981 by the same police officer. Jehangir Khan was admitted to pre-arrest bail. The allegations against Jehangir Khan were that the murder of Muhammad Iqbal deceased was abetted by him and that at his instigation Muhammad Iqbal was done to death by the other accused.

On 4-5-1981 Mian Muhammad led to the recovery of .12 bore gun P.8 alongwith a live cartridge P.9 from his house vide memo. ""Exh. P.E. which has been attested by Asghar Ali, A.S.I. P.W.11, Ha q Nawaz P.W.5 and Dost Muhammad (not produced). Muhammad Amir produced gun P.4 and three live cartridges P.5/1-3 on 8-4-1981, which were secured vide memo Exh. P.C, which has been attested by Muhammad Iqbal, S.I. P.W.12, Haqnawaz P,W.5 and Dost Muhammad (not produced). On 17-4-1981 Falak Sher led to the recovery of gun P.6 and two live cartridges P.7/1-2 from his residential Kotha in the presence of the aforementioned P.Ws.

On 8-5-1981 Muhammad Hayat led to the recovery of gun P.14 and two live cartridges P.15/1-2 vide memo. Exh. P.H. attested by aforementioned Asghar Ali, A.S.I. P.W.11, Haq Nawaz P.W.5 and Dost Muhammad (not produced). On 6-5-1981 Sher Muhammad led to the recovery of gun P.12 and a cartridge P.13 vide memo Exh. P.J. in the presence of the same witnesses. No recovery could be effected from any other accused.

7. Muhammad Sher P.W.9 and Bhai Khan P.W.10, who, of course, were not related to the deceased testified at the trial to furnish the ocular account. They by and large supported the prosecution version as contained in the F.I.R. Exh P.K

8. All the appellants claimed to be innocent and thus denied the guilt. Mian Muhammad pleaded alibi, while the rest pleaded their false implication. Mirza Mahmood Baig D.W.1 and Mehrab Khan D.W.2 were produced in defence by Jehangir Khan acquitted accused, against whom allegations were of conspiracy. No evidence in defence was, however, led by the remaining accused.

9. While the learned counsel representing the State and the learned counsel for the complainant supported the judgment under appeal, the learned counsel for the appellants urged that the prosecution has utterly failed to bring home the guilt to the appellants beyond any reasonable doubt. It has been contended that the medical evidence furnishes direct lie to the testimonies of the two eye-witnesses who are merely chance witnesses. The complainant in this case is not an eye-witness of the occurrence, but he has laid down a wide net to involve all his enemies in the case.

10. We have thoroughly considered and analysed the arguments advanced on behalf of the parties. We have noticed in this case that there were only two wounds of entry in the case of the deceased, but the eye-witnesses have stated that all the assailants who were twelve in number were all armed with guns and had been firing at the deceased for 10/15 minutes, although the attack was opened by Mian Muhammad appellant. If the twelve assailants had fired with their respective guns for 10/15 minutes at the deceased, there would have been numerous injuries on his person, but in the present case there were only two wounds of entry. It is strange enough that so many persons fired for quite some time at the deceased, but not a single empty was recovered from the spot. For want of recovery of any empty from the spot, the alleged recoveries of guns from different accused are of no consequence. May be that one or two persons out of the assailants fired at the deceased and caused his death but on the basis of the evidence available on the record and other circumstances of the case it is not possible to determine as to who fired the fatal shots. Seven accused persons have been acquitted by the learned trial Court, but their acquittal has neither been challenged by the State nor by the complainant. It is also strange enough that the learned trial Court has convicted the appellants and one Sultan (since dead) under section 148, P.P. C. but except Mian Muhammad, none else has been convicted under section 302/149, P.P.C.; perhaps the learned trial Court considered that death was caused by Mian Muhammad alone. In any case no explanation is forthcoming for this course of action adopted by the learned trial Judge.

11. In the light of the above observations we have come to the conclusion that the prosecution has utterly failed to establish the charge under section 302, P.P. C. against Mian Muhammad appellant and under section 148, P.P.C. against the remaining appellants including Mian Muhammad. In this view of the matter we allow both the appeals, set aside the convictions and sentences of the appellants D and acquit them. Death sentence awarded to Mian Muhammad appellant is thus not confirmed. He shall be set at liberty forthwith if not required """-in any other case. Sher Muhammad, Muhammad Hayat, Muhammad Amir and Falak Sher appellants are on bail. They are discharged from their bail bonds. Criminal Revision No. 558 of 1983, is dismissed in limine.

S.A./M-292/L Appeal accepted.

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