1991 P Cr (PLP)

2. The prosecution story was that Muhammad Saleem (deceased) and others were supporters of Usman Ibrahim, a candidate for the bye-election of Halqa No.89 P.P., Gujranwala, while the appellants and others were the active supporters of the opposing candidate in the same Halqa. During the election campaign Muhammad Saleem (deceased) and Mazhar Hussain alias Bhola appellant happened to have some minor disputes directly with each other but the matter continued to be patched up with the intervention of the respectables.

3. In the above background on 7-4-1988 at about 1-00 p.m. after the success in the bye-election when Muhammad Saleem (deceased) accompanied by his relations and friends, besides 10/12 other persons, were celebrating the success of their candidate and were proceeding towards his house in order to congratulate him, they happened to pass in front of the house of Mazhar Hussain alias Bhola appellant in Mohallah Muslim Town. When they were so doing a few brickbats were thrown at them from his house and in the helter-skelter caused thereby Mazhar Hussain alias Bhola and his brother Liaqat Ali appellants armed with fire-arms came out from their house and declared that they would teach a lesson to their opponents for taking out procession. Mazhar Hussain alias Bhola then fired a shot with his weapon, hitting Muhammad Saleem (deceased) on front side of his neck and right lower clavicle as a result of which he fell down. Meanwhile Liaqat Ali appellant also fired a shot with the weapon he was wielding, hitting Nasir P.W. on the left side of chest as a consequence of which he too fell down and the assailants ran away. Muhammad Saleem died on the spot but Nasir P.W. was removed to the civil hospital and he eventually survived.

4. The matter was reported to the police by Muhammad Siddique complainant, the brother of Muhammad Saleem (deceased), and a case was registered against the appellants in the manner aforesaid.

5. After the completion of investigation the appellants were sent up to the Court of Session at Gujranwala for trial. On the commencement of trial in the Court of learned Additional Sessions Judge, the appellants were charged for the murder of Muhammad Saleem and attempted murder of Nasir P.W. On their pleading not guilty to the charge, the prosecution produced as many as 14 witnesses to prove its case. Prominent among those were Dr. Abdul Aziz Tarar (P.W.4) who had medically examined Nasir injured P.W. and Dr. Shaukat Khurshid (P.W.5) who had conducted post-mortem examination ol~ the dead body of Muhammad Saleem. Muhammad Siddique complainant (P.W.10), Mushtaq Ahmed (P.W.11) and Nasir Ahmad (P.W.12) had given the eye-witness account, besides deposing about the motive. Inspector Amjad Karim (P.W.13) and S.I. Muhammad Aslam (P.W.14) had given the details of the investigation. Rest of the witnesses were formal.

6. To be a little more precise, Dr. Abdul Aziz Tarar (P.W.4) had given the details of three injuries on the person of Nasir P.W., a lacerated wound on the left side of the chest 7 c.m. x 5 c.m. an abraided swelling at the medial part of right clavicle 4 c.m. x 3 c.m. and a generalized area swelling on the side of upper part of chest and left shoulder with multiple small rounded foreign body pulpable under the skin. First and the third injuries were ultimately declared grievous.

7. Dr. Shaukat Khurshid (P.W.5) proved the fire-arm lacerated wound 10 c.m. x 8 c.m. going deep right side of neck right suppra clavicle region at the level of right clavicle 5 c.m, from the mid line and 14 c.m. above right nipple with tatooing and inverted margins. He also noticed an abrasion on the front of right knee joint and another abrasion 4 c.m. x 1 c.m, 2 c.m. below the first-mentioned abrasion. On internal examination he found first right rib and right clavicle fractured and right plurae, right lung and right juglar vessels injured under injury No.l. In his opinion, the deceased had died of haemorrhage and shock due to injury No.1, which was sufficient to cause death in the ordinary course of nature.

8. Muhammad Siddique complainant Mushtaq Ahmad (P.W.11) and Nasir (P.W.12) gave the eye-witness account which finds reflection in the above narration of the prosecution case. Nasir (P.W.12), however, did not fully support the prosecution story as he stated that he could not pinpoint his assailant. He was declared hostile and was cross-examined by the prosecution but without much success. 9: The appellants, in their statements under section 342, Cr.P.C. denied all the incriminating circumstances figuring against them and alleging their false implication, professed innocence. It was, however, admitted that they belonged to Pakistan Peoples Party while the complainant party was siding with Islami Jamhuri Ittehad. About the evidence of his absconsion, Mazhar Hussain alias Bhola appellant denied having done so. He stated that at the time of occurrence a huge procession had gathered in front of his house and its participants were hurling filthy abuses in an extremely unruly and disorderly behaviour with the beat of drum and musical instruments. According to him, the processionists even resorted to firing and brickbating on the outer door of Liaqat Ali appellant whose members of family feeling unsecure pelted brickbats from over the rooftop of their house and in the melee which followed, it transpired that Muhammad Saleem and Nasir had received fire-arm injuries. According to him, during all these happenings he kept sitting in his office, situated about 150 feet away from the house of Liaqat Ali appellant, in the company of Muhammad Rafique and others and did not participate in the occurrence. The appellants, however, produced no evidence in defence. On the conclusion of the trial the appellants were convicted and sentenced in the manner aforesaid and aggrieved by the impugned judgment they came up in appeal to this Court.

10. It is argued on behalf of the appellants that in a melee of the kind alleged by the: prosecution itself, it was certainly difficult to pinpoint the assailants of the deceased and during the trial it was rightly testified by Nasir injured P.W. that he could not specify or identify his assailant and that of the deceased. According to the learned counsel, the statement of Nasir injured P.W. undermined the entire prosecution case but if his testimony is not considered sufficient to make the whole case doubtful, it can at least render it doubtful to his own extent, absolving his alleged assailant, Liaqat Ali appellant, of his vicarious liability for murder and direct liability for his (Nasir's) attempted murder. He submits that the learned trial Judge neither believed the motive nor the evidence of recovery of the gun against Mazhar Hussain appellant but despite these findings he gave no benefit to the appellant. In his opinion, Mazhar Hussain appellant should have been acquitted on benefit of doubt or at the most he could be convicted under section 304, Part I or Part II, P.P.C. With regard to the absconsion of Mazhar Hussain, he contends that he ran away for some time due to the fear of the police which had the full backing of the Provincial Government in the background of party politics and after some time he himself appeared before the Sessions Court and on the rejection of his pre-arrest bail application he surrendered.

11. The case of Liaqat Ali appellant is on different footing as compared to that of his co-appellant Mazhar Hussain appellant because the former was exonerated by his victim Nasir P.W. himself when he deposed before the trial Court that in the helter-skelter of the occurrence he could not pinpoint as who had fired at him, causing grievous injury which resulted in his immediate unconsciousness. He might have been won over by the defence, as claimed on behalf of the State, but his statement cannot be ignored on this point because whatever he stated could be true as well. In this state of uncertainty, the benefit of consequent doubt is to go to Liaqat Ali appellant. His appeal is, therefore, accepted, his conviction and sentence on both the counts are set aside and he is acquitted. He is already on bail and shall stand discharged of his liability under '', the bail bonds.

12. As regard, Mazhar Hussain alias Bhola appellant, the case of murder of Saleem stands fully established against him and he has already been given sufficient concession by the trial Court in the matter of sentence. The findings of the trial Court that the motive was not proved against him, was erroneous. In his statement recorded under section 342, Cr.P.C. he himself had admitted that he belonged to Pakistan Peoples Party and the complainant party belonged to Islami Jamhoori lttehad and on the day and time of occurrence a huge procession had gathered in front of his house and that of his brother, Liaqat Ali co-appellant. He had further stated that the processionists were beating drums, hurling filthy abuses and behaving in an extremely unruly manner and when some of the processionists began firing indiscriminately, the family members of Liaqat Ali appellant, felling unsecured, went atop the house and started pelting brickbats on the processionists and in a melee that followed, it transpired that Saleem (deceased) and Nasir P.W. had received fire-arm injuries. The prosecution case was that when the complainant party headed by Saleem (deceased), after the success of their I.J.I. candidate in the bye-election of Provincial Assembly seat, was going in a rejoicing mood towards the house of their candidate and reached near the house of the accused party, they were attacked by the appellants, one (Mazhar Hussain appellant) shooting down Saleem (deceased) and the other (Liaqat Ali appellant) shooting down Nasir P.W. Thus both the parties, more or less, are unanimous that there was a political rivalry of serious nature between them and the bye-election had added to its bitterness. The complainant party, whose candidate emerged successful in the election contest, being the victor, was rejoicing its success to the annoyance of the accused party and the former seemed to have purposely adopted a route, which passed in front of the houses of their opponents. So they clashed with each other. Brickbatting by the family members of Liaqat Ali appellant on the processionists from their house top and his own presence in his office at a short distance is admitted by Mazhar Hussain appellant himself in his statement. In these circumstances, there was little doubt left as who were entertaining grudge against each other, who was the target of ridicule and show-down for the complainant party and against whom the accused party feeling insulted was retaliating during the clash. Thus, in any opinion, the motive stood proved.

13. The ocular account given by the eye-witnesses inspired confidence though Nasir P.W. in his keenness not only to save his own assailant but also that of the deceased went to the extent of saying that he did not see Mazhar Hussain appellant firing at Saleem (deceased) when the clash started in front of the house of the appellants. As per medical evidence, there was tatooing around the fire arm injury of the deceased attributed to Mazhar Hussain appellant. Even in a procession a person firing from such a close range in the broad daylight could easily be identified. Mohammad Siddique complainant (P.W.10) and Mushtaq Ahmad (P.W.11) had consistently deposed that Saleem (deceased) was fired at by Mazhar Hussain appellant from the distance of a few feet. These witnesses could be present in a party of the kind going to the house of their successful candidate and they were rightly believed by the learned trial Judge.

14. Like motive and medical evidence, absconsion of Mazhar Hussain was another piece of corroborative evidence against him. He absconded soon after the occurrence and remained hidden for a considerable period of time before he unsuccessfully sought bail-before-arrest from the Session Court. There was no substance in the contention that he remained underground due to the fear of the police. He and his brother co-accused were sailing almost in the same boat but he did not run away. Therefore the fact of his committing murder of Saleem (deceased) on the date, time and place alleged by the prosecution stood proved against him beyond any shadow of doubt by the reliable ocular evidence coupled with medical evidence, further corroborated by the evidence of motive and absconsion and he was rightly convicted and sentenced under section 302, P.P.C. His conviction and sentence under section 307, P.P.C. are, however, not sustainable and the same are set aside and he is acquitted. Only to this extent his appeal is accepted.

15. Being on bail, he (Mazhar Hussain alias Bhola convict) shall be immediately got arrested and sent to the prison by the learned District Magistrate, Gujranwala, to whom a copy of this judgment be endorsed, for serving out his remaining sentence, under intimation to the Deputy Registrar (Judl.) of this Court. N.H.Q/M-2759/L Appeal partly accepted.