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Criminal Appeal No.146 of 1985, decided on 28th March, 1987.

---S.302/34--Long-standing enmity existing between parties and many criminal cases registered between them before' occurrence--Prosecution introducing two sets of eye-witnesses-in case--Witnesses in first set not only related to deceased but also inimical to accused and could not be relied upon without an independent corroborating evidence which was totally lacking in the case--Other set of witnesses comprising chance witnesses and also not reliable as they were not known to accused before occurrence and were not made to join any identification parade and were not named in first information report--Version of such witnesses not supported by any independent corroborating evidence--Medical testimony contradicting ocular account--Prosecution itself giving two versions of case--It was not possible to accept one version to the exclusion of other without some other independent corroborating evidence which was missing in the case--Held, prosecution failed to prove case against accused beyond reasonable doubt--Conviction and sentence set aside in circumstances.

Dr. Khalid Ranjha for Appellant.

Sohail Akhtar for the State.

Muhammad Rashid for the Complainant.

Date of hearing: 28th March, 1987.

In all 8 accused were prosecuted before learned Sessions Judge k Sargodha, for the alleged murder of Umar Hayat 45, who vide judgment dated 7-2-1985 sentenced Masood Qadir 20, Ghulam Yasin 24 to imprisonment for life and fine of Rs.2,000 or in default one year R.I., under section 302/34, PPC. It was ordered that the fins: recovered, will be paid as compensation to the heirs of the deceased. The convicts were also extended benefit of section 382-B, Cr.P.C. Mansoor Nasir 22, Lashkar 55, Abdul Khaliq alias Khalid 23, Muhammad Saleem 25, Muhammad Hussain 30 and Muhammad Afzal 65 were acquitted by the same judgment. Masood Qadir filed Criminal Appeal No.146/85 and Ghulam Yasin filed Criminal Appeal No.144 of 1985 to challenge their conviction and sentence. Khizar Hayat complainant filed Criminal Revision against Masood Qadir, Mansoor Nasir, Lashkar Khan, Abdul Khaliq and Muhammad Afzal seeking enhancement of sentence of Masood Qadir and for retrial of the case against remaining respondents. This revision was not admitted but only ordered to be heard alongwith the connected appeals. All these matters will be disposed of by this judgment. The occurrence in this case took place at 5-30 P.M. on 13-6-1983 at Wadhi More about 9 miles from the Police Station Shahpur Saddar District Sargodha. The FIR Ex.PD was recorded on the same day at 7-15 P.M. at the police station by ASI Alam Sher PW 16 on the statement of Khizar Hayat PW 7. It was stated by Khizar Hayat in his first information report Ex.PD that on 18-6-1983 at about 5-30 P.M. he and his brother Umar Hayat deceased on their return from Sargodha after attending to private business got down from the bus at Wadhi More. He himself went to purchase sweetmeat from a nearby hotel while his brother Umar Hayat stood near the toll tax post. Muhammad Akram and Muhammad Feroze P.Ws. were also standing near him. In the meanwhile a truck came from the side of Sahiwal (District Sargodha) and stood near the toll tax post. Masood Qadir and Khalid armed with rifles, Mansoor Nasir armed with gun and Lashkar Khan armed with stick came out of the truck which left the spot. Lashkar Khan challenged. On hearing this U mar Hayat rushed in the toll tax post to save himself. Mansoor Nasir fired which hit right buttock of Umar Hayat. The fires shot by Masood Qadir and Khalid from their rifles hit the head of Umar Hayat, above left ear, on account of which the head and face burst into pieces. Umar Hayat fell in the toll tax post room. The accused left the spot. The occurrence was witnessed by him as well as Muhammad Akram and Muhammad Feroze P.Ws. They went near Umar Hayat and found him dead as a result of the injuries. The motive was stated to be that about two years earlier Bashir, a son of Lashkar Khan accused was murdered for which he (Khizar Hayat PW) and his brother Umar Hayat alongwith three other were challaned. The said case was still pending at the time of occurrence.

Khizar Hayat concluded by stating that his brother Umar Hayat was murdered on the instigation of Muhammad Afzal accused.

2. The police after registration of the case undertook investigation. The dead body of Umar Hayat aged about 45 years was sent for post-mortem examination which was conducted at 8 A.M. on 14-6-1983 by P.W.12 Dr. Malik Muhammad Khan, who on external examination noted the following injuries: -

(1) An oval wound left side upper part bridge nose 2 c. m. x l c.m. x brain deep with inverted margins and it was wound Of entry;

(2) An oval wound left side nose middle part 5 c. m. x 3 c. m. x brain deep with inverted margins and it was wound of entry. Direction of injuries Nos.1 & 2 was upward.

(3) A lacerated wound left side face and left side skull 19 c. m. x 10 c.m. x brain deep and brain-matter was coming out of it with fracture of left side of skull bones. There was fracture of left maxillary and mandibuee bone. The margins of the wound were everted. This was wound of exit of injuries Nos.1 & 2;

(4) Contused abrasion right shoulder outer side 5 cm x 2 cm.

(5) A round wound at right hip joint 1 cm x 1 cm x bone deep with inverted margins with a collar of abrasion around the wound (wound of entry);

(6) Four round wounds right thigh upper most and lateral parts 5 cm below and medial to injury No.5. Three of them were having inverted margins and a collar of abrasion around them and these were wounds of entry (No. 1, 3 & 4 from above downwards) while No.2 was having everted margins measuring 2 cm x 2 cm. This was wound of exit of injury No.5.

On dissection the brain matter was found badly lacerated of which only 2/3 was present in the skull. A pellet was taken out from thigh. Injuries 1, 2 and 3 caused intra cranial haemorrhage and shock and were collectively sufficient to cause death in the ordinary course of nature. The remaining injuries were of simple nature. Injury No.4 had been caused by blunt weapon. Rest of the injuries were by fire-arm.

3. ASI Alam Sher PW 16 during inspection of the spot on 13-6-1983 collected blood-stained earth vide memo Ex.PF: He also took in possession one plank P.6 of the door of the toll tax room vide memo. Ex.PG. Masood Qadir, Lashkar Khan and Abdul Khaliq accused were arrested on 21-6-1983. Mansoor Nasir accused was arrested or) 1-7-1983. Muhammad Saleem, Muhammad Hussain and Ghulam Yasin accused were arrested on 27-8-1983. On 21-6-1983 Masood Qadir accused at the time of his arrest produced unlicensed rifle P.5 alongwith two cartridges P.5/1 and P/2 vide memo Ex.PE. These were taken in possession by ASI Alam Sher PW.16 in presence of Abdul Rehman PW.5 and Allah Dad PW not examined. On the same day i.e. on 21-6-1983 at the time of his arres Lashkar Khan accused produced stick P.4 which was taken in po: session vide memo Ex.PC by ASI Alam Sher PW.16 in presence of same witnesses. Ghulam Yasin accused on 10-9-1983 led to the recovery of gun P.7 which was taken in possession vide memo. PJ by SI Sardar Ali PW.19 in presence of Muhammad Hussain PW.14 and Muhammad Amir PW not examined. These three weapons were not sent for examination to fire-arm expert. The police during investigation found that in fact the crime was committed by Masood Qadir, Ghulam Yasin, Muhammad Saleem and Muhammad Hussain accused and that the story narrated by Khizar Hayat in his FIR Ek.PD was not all correct. As a result of this Masood Qadir and his 7 co-accused were challaned to face the trial.

4. In support of its case prosecution examined 19 witnesses in all. PW.7 Khizar Hayat and PW.8 Muhammad Feroze were examined as eye-witnesses who supported the initial version of the occurrence in FIR Ex.PD. Muhammad Akram another witness of this version was given up as unnecessary. The second version of the occurrence was narrated by PW.9 Muhammad Nawaz. PW.10 Ghulam Abbas and PW.11 Sher Muhammad. The recoveries of crime weapons were witnessed by PW.5 Abdur Rehman and PW.14 Muhammad Hussain. The medical evidence was furnished by Dr. Malik Muhammad Khan PW."12 a given in detail above. The case was investigated by SI Daud Butt PW.13, S.I. Sher Muhammad PW.15, ASI Alam Sher PW.16 and S.I. Sardar Ali P.W.19. The challan was filed by Inspector Zafar Ali PW.17. The evidence of rest of the witnesses was of formal nature.

5. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. H.C. Sikander Zulqarnain PW.1 and H.C. Ahmad Khan DW.2 proved copies of certain first information reports to prove enmity between the parties. Muhammad Afzal acquitted accused also tendered in evidence various FIRS and documents in defence. The learned trial Judge came to the conclusion that the eye-witness act"' it of the occurrence furnished by PW.7 Khizar Hayat and Muhammad Feroze could not be accepted. He placed reliance on the evidence of PW.9 Muhammad Nawaz, PW.10 Ghulam Abbas and PW.11 Sher Muhammad and convicted the two appellants stated above. I have carefully gone through the evidence on record and have heard the learned counsel appearing for the parties.

Masood Qadir, Mansoor Nasir accused are sons of Muhammad Afzal accused. A sister of Muhammad Afzal accused is wife of Lashkar Ali accused. Abdul Khaliq accused is son of Lashkara Ali accused. Ghulam Yasin, Muhammad Saleem and Muhammad Hussain ,accused are not related inter se. They are also not related to their, co-accused. It is admitted by Khizar Hayat PW.7 that they have long-standing enmity with Lashkar Ali and Muhammad Afzal etc., accused. Many criminal cases were registered between the parties before 3/4 years of the present occurrence. He admitted that "we have enmity with the accused for the last 4/5 years ago". PW.7 Khi/ar Hayat is brother of Umar Hayat deceased while Muhammad Feroze PW.8 is a son of paternal-aunt of Umar Hayat deceased. It is, therefore, abundantly clear that these two witnesses were not only retlated to the deceased but also had long-standing enmity against the accused. They cannot, therefore, be relied upon without an independent corroborating evidence which is totally lacking in the instant case. The second version of the occurrence has been furnished by PW.9 Muhammad Nawaz, PW.10 Ghulam Abbas and PW.11 Sher Muhammad. These three witnesses can also not be relied upon because they appeared to be chance witnesses. Secondly, they did not know the accused before the present occurrence and thirdly they were not made to join any test identification parade of the accused in jail. They claimed to have identified the accused in police station. These three witnesses were not named by any of the witnesses named in the FIR. It is not clear from the evidence as to how they appeared before the police to make statement during investigation. These witnesses have also not been supported by any independent corroborating evidence. I have gone through the evidence of PW 12 Dr. Malik Muhammad Khan. According to the second set of eye-witnesses namely PW.9 Muhammad Nawaz etc., the accused were armed with guns. They did not state that any of the accused had rifle in his hand. The medical evidence would show that Injury No.5 on right hip joint of Umar Hayat deceased was by .12 bore gun. A pellet was extracted on dissection of thigh. Injuries 1 and 2 seem to have been caused by rifle shots. The medical evidence, therefore, does not corroborate the evidence of second set of witnesses i.e. PW.9 Muhammad Nawaz and others.

Similarly the medical evidence does not support the ocular account furnished by Khizar Hayat PW.7 and Muhammad Feroze PW.8. According to the version given in FIR by Khizar Hayat PW.7 the first fire was shot by Mansoor Nasir which hit the right buttock of Umar Hayat deceased. There is no injury on right buttock. Injury No.5 was on the right hip joint. Injury No.6 was its exit. Secondly according to the version given in FIR, Masood Qadir and Abdul Khaliq, alias Khalid accused simultaneously fired hitting the head of Umar Hayat a little above left ear. This injury made an exit wound on the face of the deceased. On the other hand injuries 1 & 2 were found to be on the left side of the nose. These two injuries were wounds of entry. There was no entry wound on the left side of head above ear. According to Khizar Hayat and Feroze P.Ws. the wound on the face was an exit wound while according to the medical evidence the entry wounds on the face were wounds. The medical evidence, therefore, contradicts these two witnesses.

6. A perusal of the evidence would show that prosecution case itself has two versions of the occurrence. According to the version of Khizar Hayat and Feroze PW the present crime was committed by Masood Qadir, Mansoor Nasir, Abdul Khaliq alias Khalid and Lashkar accused. They stated that Umar Hayat was murdered by them at the instance of Muhammad Afzal. According to the second version given by Muhammad Nawaz PW.9 and others the murder was committed by Ghulam Yasin, Muhammad Saleem, Muhammad Hussain and Masood Qadir. It is not possible to accept one version to the exclusion of other without some other independent corroborating evidence which as held above is not available in this case.

5. In view of the above discussion I am of the view that the prosecution has failed to prove its case against the two appellants beyond reasonable doubt. The two appeals are accepted. The conviction and sentences of Masood Qadir and Ghulam Yasin appellants are set aside. They are acquitted. They shall be released from prison forthwith if not required in any other case. In view of the above decision in two appeals the connected revision is dismissed in limine.

M.Y.H./M-286/L Appeal accepted.

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