1992 PLP 1902 (MLD)

8. The occurrence in question which had taken place at about 9‑15 a.m. on 30‑10‑1986 near the house of one Irshad in the area of Narowali within the jurisdiction of Police Station Saddar, Gujrat, had been reported by one Rehmat Khan, the father of Afzal deceased of the present case, to Altaf Muhammad S.I./S.H.O. (P.W.12) of the said police station at 10‑30 a.m. at the place of occurrence which report was subsequently registered as F.I.R. No.675/86 of the said police station.

9. The said complainant had stated that on the day of occurrence, he was going to Mauza Doomnianwali alongwith his son Muhammad Afzal deceased to attend a wedding and just as they had reached near the house of one Irshad at about 9‑15 a.m., Ijaz and his father Ghulam Rasool armed with .12 bore guns and Tahir Maqsood armed with a .7 M.M. rifle emerged from the nearby Bajra crop and started firing shots at his son Afzal deceased and that in the meantime, Riaz armed with a carbine and Seeman (Zahid Nasim) armed with a .12 bore gun also reached the spot.

10. He had further alleged that Afzal deceased ran towards a field of paddy crop but Riaz accused fired a shot which hit him on his left below which was followed by a shot fired by Seeman appellant which hit the deceased on his left flank as a result of which, the deceased fell down and died at the spot.

11. The complainant had disclosed that about 5/6 days prior to the present occurrence, Afzal deceased had had a quarrel with one Muhammad Nawaz who was a nephew of Ghulam Rasool accused and it was on account of this grievance that the assailants had done his son to death.

12. During the course of investigation, the 1.0. recovered a Bicycle P.7 from the spot which had been allegedly left there by Riaz and Seeman accused. He arrested the accused persons whereafter, Ijaz led him to the recovery of Carbine ‑P.5 while Seeman got recovered a Gun P.6 at his instance,

13. When confronted with the prosecution case, all the accused persons denied their participation in the occurrence in question and attributed their involvement in the present case to enmity and suspicion.

14. Canvassing acquittal for the appellants, their learned counsel argued that the ocular testimony was inimical and interested; that the eye‑witnesses were chance witnesses of the occurrence in question; that there was no corroboration available in support of the eye‑witness account; that the eye witnesses had been proved false in respect of a substantial part of their testimony; that the medical evidence did not support the ocular testimony and finally that the prosecution had failed to prove its case against the appellants and consequently deserved acquittal.

15. Impugning the acquittal of Riaz accused, the learned Asstt. A.‑G. contended that the reasons stated by the learned trial Court for the acquittal of Riaz accused were arbitrary and whimsical and his acquittal which was ill founded, deserved to be set aside.

16. Rehmat Khan complainant is the father of Afzal deceased while the other eye‑witness i.e. Ghulam Hussain (P.W.8) is a nephew of one Hakam Ali whose wife is a sister of Rehmat complainant.

17. It is true that both the eye‑witnesses are related to the deceased but that by itself has never been considered sufficient to condemn the eye witnesses as interested unless it was demonstrated that they had any motive to falsely and maliciously implicate the accused persons for a criminal charge.

18. Despite lengthy cross‑examination, the defence could not successfully and sufficiently demonstrate any animosity on the part of these two eye witnesses which could have prompted them to manoeuvre a conviction for the accused persons in question. It cannot therefore be said that the two eye witnesses who appeared at the trial in support of the prosecution case were not independent witnesses of the occurrence in question. The explanation offered by these two eye‑witnesses for their presence at the place of occurrence at the relevant time is also reasonable and inspires confidence.

19. The submission of the learned counsel for the convicts that the medical evidence ran counter to the eye‑witness account is not borne out from the record. The seats of these injuries do demonstrate that they could reasonably have been the result of two shots fired at the deceased, as alleged.

20. The occurrence in question was a broad‑daylight occurrence, the venue of which was a public place and there is no possibility of the said occurrence having gone un-witnessed or the assailants having escaped unidentified from the place of occurrence.

21. Consequently, no exception can be taken to a ‑finding of guilt recorded by the learned trial Court against Zahid Nasim alias Seeman who was saddled with the fatal shot fired at the deceased.

22. The eye‑witnesses had attributed the other shot which had hit the deceased at his left elbow to Riaz accused. He had, however, been acquitted by the learned trial Court only on the ground that the eye‑witnesses had perhaps mistaken him for Ijaz accused and the said second shot had in fact been fired by the said Ijaz. No reason has, however, been offered by the learned trial Court for reaching this conclusion. It, however, appears that the learned trial Court was influenced only by the fact that no recovery had been effected at the instance of Riaz accused and Ijaz accused was the one who had led to the recovery of a gun.

23. This inference drawn by the learned trial Court from the material available on record appears to be whimsical and conjectural. The eye‑witnesses had alleged, in unmistakable terms that it was the shot fired by Riaz which had hit the deceased on his left elbow. Needless to say that the recovery of a weapon of offence is no condition precedent for holding an accused person guilty nor can another accused the convicted only because some weapon of offence had been allegedly recovered at his instance.

24. Ijaz appellant was burdened only with ineffective firing at the deceased and it had in fact beer) stated by one of the eye‑witnesses that he could not state with certainty whether the ineffective firing attributed to Ijaz and the other acquitted accused was a firing made in the air or at the deceased.

25. In the circumstances, we do not feel convinced about the complicity of Ijaz appellant in the occurrence in question.

26. His conviction under section 302/34, P.P.C. is, therefore, set aside. He is acquitted of the said charge. He is on bail and is set at liberty after being discharged from his bail/surety bonds.

27. For the reasons above stated, we further find that the acquittal of Riaz accused is not justifiable on record. As has been mentioned above, he was the one who had been specifically and unmistakably attributed a shot which had hit the elbow of the deceased. We, therefore, hold that he was the one who had participated in the occurrence in question as alleged. The offence committed by him, however, requires consideration.

28. The prosecution had alleged that Zahid Nasim and Riaz accused had reached the spot while riding a bicycle after the occurrence had already commenced. These two were not accompanying other three accused persons i.e. Ghulam Rasool, Tahir Maqsood and 1jaz.

29. In the circumstances, Zahid Nasim and Riaz accused having planned the murder of Afzal deceased, appears to be a doubtful affair, the benefit of which doubt has to go to these two assailants.

30. Consequently, Riaz accused cannot be burdened with sharing a common intention with Zahid Nasim who had fired the fatal shot at deceased. Riaz is, therefore, liable only to the extent of damage that he had personally 1 caused and cannot be held vicariously liable for the loss caused by Zahid Nasim.

31. We would, therefore, allow Crl. Appeal No.911 of 1989 filed by the State challenging the acquittal of Riaz accused by convicting him for an offence punishable under section 307, P.P.C. He has already remained in custody for about three years. We find that the said term of imprisonment is sufficient to meet the ends of justice. He is, therefore, punished with a term o imprisonment already suffered by him after extending to him the benefit of the provisions of section 382‑B, Cr.P.C. He is also sentenced to pay a fine o Rs.5,000 or to undergo one year R.1. in default of payment of the said fine. He is allowed thirty days time to deposit the said fine. In case the said fine is not paid as directed, he shall be taken into custody to undergo the imprisonment directed in default of payment of the said fine.

32. We have maintained the conviction of Zahid Nasim alias Seeman on a charge under section 302, P.P.C. The quantum of sentence awarded to him, however, also requires consideration.

33. We have already held above, as alleged by the prosecution, that he had reached the spot after the occurrence had already commenced. He can, therefore, not be burdened with any premeditation for committing the murder of Afzal deceased.

34. Consequently; the sentence of death awarded to Zahid Nasim appellant by the learned trial Court is not justifiable. The said sentence is, therefore, not confirmed.. He shall instead suffer imprisonment for life under section 302, P.P.C. for the murder of Afzal deceased. He shall be allowed the benefit of the provisions of section 382‑B, Cr.P.C. The. punishment of fine awarded to him and the direction of the learned trial Court regarding the payment of compensation are, however, maintained.

35. Murder Reference No.138/89 is answered in the negative.. Crl. Appeals No.507 /89 and No.911/89 are disposed of in the above terms and for the reasons abovestated, Crl. Revision No.427/89 is dismissed. Death sentence is not confirmed. N.H.Q./1‑25/L Order accordingly.