1989 P Cr (PLP)

(3) 8 x 0.3 c.m. incised wound 2.5 c.m. to the right of midline and 18 c.m. below right shoulder at the back of right chest. (4) 6.5 x 0.7 c.m. incised wound longgitudinally placed on top of head 2 c.m. to the left of midline and 5 c.m. above left eyebrow. (5) 28 x 0.5 c.m. abrasion horizontally placed accross upper part of front of chest, 4.5 c.m. below supra sternal notch. (6) 1.25 x 0.5 c.m. bruised area on anterior aspect of right upper arm, 7 c.m. above elbow joint. (7) 5 x 1 c.m. bruised area on antro‑lateral aspect of left upper arm, 15 c.m. below top of shoulder. (8) 1.5 x 0.3 c.m. incised wound on back of left wrist. (9) 1.5 x 0.7 c.m. abrasion over right tibial‑tuberosity. (10) 1.5 c.m. in diameter abrasion on front of left knee." He opined that all the aforementioned injuries were ante‑mortem. Injuries Nos. 1 to 4 were caused by sharp‑edged weapon and the rest by blunt weapon. He further opined that the death occurred due to damage to lung and haemorrhage and shock, which was sufficient to cause death in the ordinary course of nature. Exh. P.M. is the carbon copy of the post‑mortem report, while Exh. P.M./A and Exh. P.M./B are the diagrams re: pictorial presentation of the injuries.

6. Zahid alias Muna, Arif alias Dana and Musa were arrested on 12‑9‑1986 by Sana Ullah, S.I. P.W.16, Haroon‑ur‑Rehman alias Noni was arrested on 14‑9‑1986 by Latif Hussain Shah S.I. P.W.17. Nazir alias Jeera and Khalid were arrested on 14‑9‑1986 by Nazar Hussain, Inspector/S.H.O. P.W.8. Muhammad Ashraf applied for bail before arrest unsuccessfully and he was arrested on 29‑9‑1986 by Sana Ullah S.I. P.W.16. On 11‑9‑1986, empty cartridge, Exh.P.7, was recovered from the place of occurrence vide memo. Exh. P.J., which has been attested by Muhammad Din P.W.11, Sana Ullah S.I., P.W.16 and Muhammad Saleem (not examined. On 22‑9‑1986, Arif alias Dana led to the recovery of Carbine, Exh.P.3 from behind the northern wall of Government Transport Depot, Saddar, Lahore. This weapon was seized vide memo. Exh. P.D. which has been attested by Iftikhar Ahmad P.W.9, S.I. Sana Ullah P.W.16 and Khalid Nadeem (not produced). On the same day, Muhammad Musa led to the recovery of blood stained Chhuri P.4 from underneath a Keekar tree behind the graveyard, which is located near the Government Transport Depot, Saddar. This Chhuri was taken into possession vide memo. Exh. P.E. which has been attested by Iftikhar Ahmad and S.I. Sana Ullah P.W.9 and P.W.16 respectively. The third attested witness, namely, Khalid Nadeem has not been produced. On 26‑9‑1986, Nazir alias Jeera led to the recovery of blood‑stained Chhuri P.5 from near the level crossing at Ghazi Road, vide memo. Exh .P.F. which has been attested by Iftikhar Ahmad P.W.9, S.I. Sana Ullah P.W.16 and Khalid Nadeem (not examined). On 28‑9 1986, Muhammad Khalid led to the recovery of Carbine P.6 from near the graveyard, which is closed to the G.T.S. Bus Stand, Saddar, vide memo. Exh. P.G. which has been attested by Iftikhar Ahmad P.W.9 S.I. Sana Ullah P.W.16 and Khalid Nadeem (not produced). Haroon‑ur‑Rehman alias Noni was produced by Usman Ghani and Abdul Javed Razakars (not produced), before Latif Hussain Shah S.I., P.W.17 alongwith dagger P.8, on 13‑9‑1986. Dagger was seized vide memo. Exh. P.K. attested by Abdul Javed and Usman Ghani (not produced).

7. Vide Chemical Examiner's report Exh. P.Q., and Serologist's report Exh. P.T., stains of blood on Chhuris allegedly recovered from Muhammad Musa and Nazir alias Jeera, were of human origin. No report has been obtained regarding the dagger allegedly recovered from Haroon‑ur‑Rehman. Empty cartridge recovered from the spot and carbines allegedly recovered at the instance of Khalid and Arif were sent to Forensic Science Laboratory on one and the same day, viz. 5‑10‑1986. Vide report Exh. P.V. empty recovered from the spot wedded with carbine recovered from Muhammad Khalid. At the trial, Iftikhar Ahmad P.W. and Tahir Masood P.W.10 testified as eye‑witnesses to furnish ocular account of the prosecution version. Both these P.Ws. have fully supported the prosecution case. The appellants pleaded denial simpliciter but no evidence has been led in defence nor they have been examined under section 340, Cr.P.C.

8. The learned counsel representing the State and the learned counsel for the complainant, while supporting the judgment in appeal, maintained that F.I.R. in this case has been lodged very promptly, the motive part stand proved from the contents of application made at the police station, by the deceased, shortly before the occurrence, and the testimonies of the eye‑witnesses are consistent and confidence inspiring. It has further been averred that there is nothing on the record that the eye‑witnesses had any motive against the appellants for false involvement on the charge of murder. Learned counsel for the appellants, however, contended that:‑ (a) in this case, innocent persons have been involved. (b) the ocular account has been furnished by two witnesses who were closely related to the deceased. The occurrence took place in the Bazar in the presence of many persons but no independent person has been examined; (c) the testimonies of the eye‑witnesses have not been supported by the medical evidence; (d) the alleged motive has not been proved; (e)' there was no occasion of firing in the air; (f) and the crime empty and carbine were sent to the Forensic Science Laboratory on one and the same day although empty was allegedly recovered on 11‑9‑1986, while the carbine was recovered on 28‑9‑1986, and no explanation has been offered for not sending the empty to the Laboratory earlier.

9. The contentions raised on behalf of the learned counsel for the parties have been thoroughly considered and fully analysed. Admittedly, the eye witnesses are the close relatives of Muhammad Azam deceased but on account of mere relationship, they are not disqualified for being relied upon as eye‑witness particularly, when there is nothing on the record to suggest that they were inimically disposed towards the appellants. It has however, been noticed that as per prosecution version, as contained in the statement Exh. P.C. only 4 injuries were caused to the deceased with sharp‑edged weapon by Zahid alias Muna, Haroon‑ur‑Rehman alias Noni, Nazir alias Jeera and Musa, Dr. Saleh Yousaf, who conducted the post‑mortem examination on the dead body of Muhammad Azam deceased, noticed 10 injuries on the dead body of the deceased, out of which five were opined to have been caused by sharp‑edged weapon and rest by blunt weapon. Injuries caused by blunt weapon found on the dead body, at the time of post‑mortem examination, do not find mention in the statement Exh. P.C. In view of the nature of these injuries, which are simple abrasions and bruised areas, it may be observed that these injuries might have been suffered while falling on the ground and struggling during the course of occurrence. It has, however, been noticed that S.I. Sana Ullah P.W.16 who conducted the investigation of this case, testified at the trial that according to his investigation, the motive of the murder was fight between Muhammad Musa accused and Khalid Nadeem and the occurrence was given a political complexion. He conceded that he made no enquiry about the political affiliation of Muhammad Ashraf and Zahid Hussain and no evidence was produced before him during the investigation that Zahid Hussain and his father Muhammad Ashraf have affiliation with People's Party. He also admitted that many persons, including respectable like Councillor and M.PAs. appeared before him to vouch safe the innocence of Muhammad Ashraf. In their statements, recorded under section 342, Cr.P.C. it has been stated by Muhammad Ashraf and Zahid Hussain that 3/4 days prior to the present occurrence, Muhammad Musa had come to the Sweetmeat Shop of Muhammad Ashraf, which is adjacent to the house of Muhammad Azam deceased, for purchasing Pooris. Khalid Nadeem, a nephew of Muhammad Azam deceased, had also come there for the same purpose. Muhammad Musa and Khalid Nadeem had quarrelled with each other over the turn of purchasing Pooris. People present at the shop separated them but after a shortwhile Khalid Nadeem and Muhammad Azam came to the shop of Muhammad Ashraf and enquired from Nazir alias Jeera appellant, who was employee of Muhammad Ashraf, about the whereabouts of Muhammad Musa. Nazir expressed his ignorance but Muhammad Azam and Khalid Nadeem gave beating to Nazir alias Jeera. Zahid Hussain son of Muhammad Ashraf tried to intervene but he too was beaten by Khalid Nadeem and Muhammad Azam deceased. It is in regard to this occurrence that S.I. Sana Ullah stated that according to his investigation, the motive of the murder was the dispute between Muhammad Musa accused and Khalid Nadeem and the occurrence was given a political complexion.

10. It has been alleged in the statement Exh. P.C. that Khalid and Arif fired in the air with their respective carbines at the time of occurrence to deter the persons present at the place of occurrence to come near the scene of occurrence. At the time of spot inspection, it has not been noticed that any missile, thus fired, struck against any wall at or near the place of occurrence. Only one crime empty was allegedly recovered from the scene of occurrence but this empty, as already stated, was not sent to the Forensic Science Laboratory within a reasonable time after the recovery. It was sent to the Ballistic Expert after the recovery of carbine which was admittedly, recovered on the last day of the remand of Khalid i.e. on 28‑9‑1986. The recovery of crime empty from the spot and the Forensic Expert's report that it wedded with the carbine recovered from Khalid appellant are; therefore, of no consequence. In case of Arif, a carbine was allegedly recovered at his instance but this carbine is not connected with the crime, as no crime empty allegedly fired from this carbine, was recovered from the spot. There is nothing on the record to suggest that Khalid and Arif had any previous enmity against the deceased or they had any motive to murder him. They are not also connected with the incident in which Khalid Nadeem and Muhammad Azam deceased gave beating to Nazir alias Jeera and Zahid Hussain appellants, which incident, according to the Investigating Officer, furnished motive to the present occurrence. As a matter of fact, the prosecution has not been able to bring home the guilt to Khalid, Arif and also to Ashraf to whom no overt act except raising of Lalkara has been attributed. It, therefore, transpires that this is a case in which innocent persons have also been involved alongwith those who were actually liable for the crime and in this view of the matter, it is for the Court to sift the grain from the chaff.

11. In the light of the above discussion, it is concluded that motive of the crime in this case was not the political rivalry, as alleged in the F.I.R. Exh.P.C./1 but, in fact, the motive for the murder was fight between Muhammad Musa appellant and Khalid Nadeem, the nephew of the deceased, which took place days prior to the present occurrence on the turn of purchasing Pooris. After that fight, Khalid Nadeem, and Muhammad Azam deceased also gave beating to Nazir alias Jeera, servant of Muhammad Ashraf and to Zahid Hussian son of Muhammad Ashraf, who were present on the sweet‑meat shop of Muhammad Ashraf at the relevant time. It is further concluded that charge against Muhammad Ashraf, Khalid and Arif appellants has not been proved beyond doubt. The remaining appellants namely Zahid Hussain, Haroon‑ur‑Rehman alias Nom, Muhammad Musa and Nazir alias Jeera have rightly been found guilty by the learned trial Court. The charge of murder stands established against them' beyond any reasonable doubt, on the basis of ocular evidence, which i6 corroborated by recoveries of blood‑stained knives and dagger. The medical evidence also supports eye‑witness account furnished by Iftikhar Ahmad P.W.9 and Tahir Masood P.W.10. In view of the young ages of these appellants, the learned trial Court was justified in not imposing capital punishments. In the light of these findings, appeal is allowed to the extent. of Ashraf, Khalid and Arif appellants. Their convictions and sentences are set aside and they are acquitted and directed to be released forthwith, if not required to be detained in any other case. 11‑A. In case of appeals of remaining appellants viz. Zahid Hussain alias Muna, Haroon‑ur‑Rehman alias Noni, Muhammad Musa and Nazir alias Jeera, their convictions are altered to section 302/34, P.P.C. instead of section 309/149, P.P.C. but their sentences, i.e. imprisonment for life and fine of Rs.10,000 each or in default 3 years' R.I. are maintained. They are however, acquitted of the charge under section 148, P.P.C. The fine, if realized, shall be paid to the heirs of the deceased as compensation. But for the alteration as indicated above, their appeals are dismissed.

12. Criminal revision filed by Iftikhar Ahmad complainant is dismissed. M.Y.H./M‑1511/L Order accordingly.