1982 PLP 288 (SCMR)

In case of realization of fine, the sum of Rs. 5,000 was ordered to be paid to the heirs of Yaqub (deceased) as compensation and a sum of Rs. 1,000 each to P. Ws. Arif, Muhammad Ali and Ahmad under section 544‑A, Cr. P. C.

3. The motive for the offence is stated to be that there was a bitter blood feud between the parties since about 15 years in which each side murdered members of the other party and there were cases and counter‑cases between them under sections 302 and 307, P. P. C.

4. It is alleged that on 1‑6‑i977 at about 5 p.m. Yaqub (deceased) accompanied by his son Mustafa, P. W. (petitioner herein), Muhammad P. W. 11, Arif son of Ata Muhammad, P. W. 12, Sanata P. W. 13, Javed, another son of Yaqub, deceased (not produced), Arif son of Abdullah (not produced) and Jan Muhammad (not produced) were proceeding to the brick kiln of Ghulam Hussain in Dhoka Mandi to purchase bricks for the house of Muhammad Yaqub, deceased, which was under construction in those days. For reaching the brick kiln, they had to pass in front of the shop of Sheikh Bahadur, situated in the market. All the 14 accused were waiting in ambush for them at the said shop. It is alleged that Mansha, Muhammad Hussain son of Shera Machi, Siddique, Muhammad Hussain son of Ahmad, Allah Rakha, Mansha son of Hayat, Sardara, Shabbir Hussain and Muhammad Isbaq were armed with '12 bore guns, Hakim Ali, Muhammad Ali and Arif were armed with rifles, Waryam, co‑ accused, was armed with a Danda while Sheikh Bahadur, accused, was empty‑handed. When the deceased, who was a few paces ahead of his companions, reached near the shop of Sheikh Babadur, the latter shouted a lalkara at him and thereafter Muhammad Hussain, Siddique and Sardara, respondents, fired at him with their guns simultaneously. All the three shots hit him, as a result of which he fell down. Arif, accused (Since dead) fired at Arif, P. W. 12, Muhammad Hussain son of Shera Machi (respondent No. 1) shot at Muhammad Ali, P. W. 10 with his gun, Shabbir Hussain respondent, fired with his gun at Ahmad, P. W.

11. The other 6 accused who were armed with fire‑arms namely Ishaq, Allah Rakkha, Mansha son of Shera Machi, Mansha son of Hayat Muhammad Ali and Hakam Ali also fired at the complainant party, but ineffectively. No specific injuries are, therefore, attributed to them as the shots fired by them are said to have all missed altogether. Mustafa, P. W. 9, complainant, who was carrying a licensed rifle and his brother Javed, who picked up the gun of his deceased father, returned the fire and shot at the accused party. Besides the aforementioned witnesses, the incident was also witnessed by Sanata, P. W. 13 and Muhammad Rafiq, P. W.

14. All the injured persons were taken to the hospital, but Yaqub died in the way.

5. The F. I. R, was lodged by Mustafa, P. W. 9 at 6‑30 p.m. at P. S. Mangtanwala. It was recorded by Muhammad Sadiq, S. H. O., P. W.

20. The S. H. O. then visited the spot. He found no empty cartridge lying there but during the investigation, he recovered licensed guns from Ishaq, Allah Rakkha, Muhammad Hussain son of Ahmad, respondents and Sardara, accused. He also recovered unlicensed guns from Shabbir Hussain, Muhammad Hussain son of Shera Machi, respondents and Siddique, co- accused. He also recovered a rifle from Muhammad Arif (accused) (since dead). But as observed by the learned High Court, these recoveries did not advance the prosecution case as no empty cartridges were recovered from the spot, with which these fire‑arms could be matched.

6. The body of Yaqub, deceased, was sent for post‑mortem examination. The injured witnesses, namely, Muhammad Ali, P. W. 10, Ahmad, P. W. 11, and Arif, P. W. 12 were also got medically examined. The prosecution failed to formally prove the medical report relating to the injuries of Muhammad Ali, P. W. and one Zikaraya, who was also stated to have been injured during the incident but was not cited as an eye‑witness: The injuries of Muhammad Ali, P. W. 10 were, therefore, not taken into account. Ahma, P. W. 11, was found to have sustained one small pellet injury of 1/8" x 1/1' on the lower fore‑arm (left). Muhammad Arif, P. W. 12 was found to have one fire‑arm injury on his left leg.

7. At the trial, the prosecution relied on the testimony of the five eye witnesses namely, Mustafa, P. W. 9, Muhammad Ali, P. W. 10, Ahmad, P. W. 11, Arif, P. W. 12, Sanata, P. W. 13 and Muhammad Rafiq, P. W. 14; the evidence of motive and the medical evidence. As already mentioned, there were no incriminating recoveries in this case. The accused, when examined, pleaded not guilty and stated that they have been falsely involved in this case due to enmity.

8. As already mentioned, the learned Sessions Judge disbelieved the testimony of the aforementioned eye‑witnesses with respect to the eight of the co‑accused, and acquitted them. On appeal, the High Court acquitted the remaining six accused including the five respondents. It took into account that there was a bitter continuing blood feud between the parties which had resulted in a chain of murders on both sides. It disbelieved the eye‑witnesses who were either closely related to the deceased or were chance witnesses as they were residents of places situated at considerable distances from the place of occurrence, and were merely chance witnesses. It also held that in view of the fact that as many as 12 persons are alleged to have fired at the deceased and the witnesses, the small number of injuries and the parts of their bodies hit by the pellets lead to an inference that the medical evidence, instead of supporting the occular testimony, contradicted the same. In this connection the following observation in paragraph No. 9 of the impugned judgment is relevant "Even if the injuries of Muhammad Ali are counted, it would make as six. This would unmistakably prove that the number of the culprits was exaggerated and many more persons were falsely involved.

9. The learned counsel for the petitioner submitted before us that the learned High Court has not reached a correct conclusion on the evidence on the record. He contended that the eye‑witnesses were reliable and should have been believed and that the motive and the medical evidence supported their testimony.

10. Having carefully gone through the relevant portions of the evidence and the impugned judgment, we are not inclined to agree with this submission. The learned High Court has given a very detailed and elaborate judgment giving cogent reasons for not believing the prosecution evidence. 11.We notice that except the witnesses who are related to the deceased; the other witnesses reside at considerable distances and their explanation for being present at the spot at the time of occurrence are not convincing. We are also inclined to respectfully agree with the view of the High Court that the location of the injuries on the body of the deceased indicate that these could have been the result of only one shot. Similarly the fact that although according to the prosecution, a large number of persons had fired at the complainant party consisting of 8 persons yet, apart from the deceased, onl y two persons namely Rahman and Arif, P. Ws., were hit and they too had only one injury each on their persons which were probably the result of stray pellet or bullet. Even the injuries on Yaqub (deceased) could have been caused by one shot. We, therefore, find no flaw in the conclusion reached at by the High Court. Even if a different conclusion could have been reached on the evidence on the record, we do not consider this to fit case for re‑appraisal of the evidence because no misreading or omission to appreciate any portion of evidence has been pointed out by the learned counsel for the petitioner. For the above reasons‑ we feel that this petition has no merit and is, consequently, dismissed. Petition dismissed.