2007 PLP 730 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.816 of 2003 filed by Zafar Ahmad alias Bawa, Azhar Iqbal and Muhammad Iqbal appellants, who were convicted and sentenced by learned Additional Sessions Judge, Bhalwal vide his judgment dated 29-4-2003 to undergo imprisonment for life , each under section 302/34, P.P.C. with a fine of Rs.10,000 each. They were also directed to pay Rs.20,000 each as compensation to the legal heirs of the deceased with the benefit of section 382-B, Cr.P.C. and in default six months S.I. each. Criminal Revision No.556 of 2003 filed by Haji Bashir Ahmad against Zafar Iqbal etc. for the enhancement of sentence and Criminal Appeal No.1006 of 2003 filed by Haji Bashir Ahmad against the acquittal of Khizar Hayat etc. shall also be disposed of through this single judgment.

2. Brief facts of the case as disclosed by Haji Bashir Ahmad complainant, are that on 30-9-2000 he along with his brother Haji Muhammad Yar went towards Mateela for some personal job. They were returning on their motorcycle towards their dera on Mateela Kotmoman road. Haji Muhammad Yar and Haji Bashir Ahmad complainant were riding on their separate motorcycles. Haji Muhammad Yar was ahead of complainant at the distance of 15/20 karams. At about 11-30 a.m. when they reached in Bhutta Colony situated in Mateela and near the house of Azhar, suddenly came out from the house of above said Azhar accused Umar Hayat armed with .12 bore gun, Zafar alias Bawa armed with pistol .30 bore; Azhar armed with .30 bore pistol and one unknown accused armed with 7-MM rifle arrived there. Umar Hayat raised Lalkara towards Muhammad Yar and in the meanwhile Zafar alias Bawa and Azhar Iqbal accused fired, which hit on the motorcycle of Muhammad Yar, who fell down along with motorcycle then Umar Hayat accused came near and fired, which hit on the left thigh of Haji Muhammad Yar, who succumbed to the injuries at the spot. They raised Lalkara that if any one carne near them he would be murdered. All the accused while firing and raising Lalkara fled away towards west. Motive behind the occurrence was that Muhammad Yar deceased had registered a case No.599 of 1999 and 592 of 1999 against Umar Hayat etc. In the above said cases Khizar, Iqbal and Allah Yar brothers of the accused were in Jail while Umar Hayat and Zafra accused were avoiding their arrest in the said cases. The accused had forced Muhammad Yar for compromise but Muhammad Yar had refused. Due to the above said grievance Umar Hayat etc. accused had committed the murder of Muhammad Yar on the abetment of Khizar Hayat, Allah Yar and Muhammad Iqbal accused.

3. After registration of the formal F.I.R., the investigation of the case was taken over by Muhammad Salabat Khan P.W.21. He reached at the spot prepared injury statement Exh.PB and inquest report Exh.PC, then, inspected the place of occurrence and collected blood-stained earth vide memo. Exh.PI. He also picked up from the place of occurrence a crime empty of .12 bore P.8 and another crime empty of .7-MM rifle P-9 and two crime empties of .30 bore pistol P.10/1-2 from different places around the spot vide recovery memo. Exh.PJ, also took into possession motorcycle No.5508/SGD Yamaha belonging to Haji Muhammad Yar deceased vide recovery memo. Exh.PK, recorded the statements of the eye-witnesses, he arrested Khizar Hayat and Allah Yar accused on 21-10-2000 and on 27-10-2000 he arrested Zafar Ahmad accused, who while in police custody got recovered .30 bore pistol P.4 along with three bullets P.5/1-03 which were taken into possession vide memo. Exh.PG. thereafter, the investigation was entrusted to Noor Muhammad, S.I. P.W.19, who on 7-11-2000 arrested Azhar Iqbal accused and on his personal search recovered .30 bore pistol P.11 and two bullets P.12/1-2, which were taken into possession vide memo. Exh.PL, then, the investigation was entrusted to Sher Muhammad, S.I. P.W.20, who on 17-1-2001 arrested Muhammad Iqbal accused and on 29-1-2001 Muhammad Iqbal accused got recovered 7-MM rifle P.6 and 8 bullets P.7/1-8 from bamboo trees in a field, which were taken into possession vide memo. Exh.P.M. After completion of the remaining formal investigation the accused faced the trial.

4. At the trial, prosecution in order to prove its case produced 21 witnesses in all, thereafter, learned S.P.P. tendered in evidence, report of Chemical Examiner Exh.PN, report of Serologist Exh.PO, reports of Forensic Science Laboratory Exh.PQ and Exh.PR and closed the prosecution case then the statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. Ghulam Gillani, Inspector was examined as D.W.1 in this case.

5. After having read the entire prosecution evidence statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record learned counsel for the appellants submits that F.I.R. was recorded after due deliberation and consultation, that net was spread very wide by the prosecution in order to falsely involve the innocent persons, that both the eye-witnesses are closely related to the deceased, one of them is real brother and the other is nephew of the deceased, that they are interested and inimical witnesses. He further submits that occurrence had taken place on 30-9-2000 at 11-30 a.m. while the post-mortem was conducted at. 3-00 p.m. on the same day and the duration given by the doctor is 6 to 8 hours and if this time is taken into consideration, then, the occurrence must have taken place at 7-00 a.m. and not at 11-30 a.m., that in fact two eye-witnesses produced by the prosecution are chance witnesses because no plausible explanation has been given by the prosecution for their presence at the spot, that later on, Muhammad Iqbal Traggle appellant, who is on bail was falsely implicated by making a supplementary statement and also giving a role of firing. He further submits that recovery proceedings in this case were fabricated, that 'motorcycle on which the deceased was travelling was never produced before the trial Court during the statements of prosecution witnesses, that crime empties have also been planted on the appellant. Learned counsel stress that crime empties were sent to the fire-arm expert thrice, that twice crime empties were sent with weapon of offence, which creates doubt on the credibility of report of fire-arm expert, that possibility of fabrication of crime empties cannot be ruled out, that no fire-arm injury towards the deceased is attributed to the present appellants and that has been attributed to Umar Hayat co-accused, who is still P.O. and the fire, which was attributed to the present appellants, that hit on the motorcycle of the deceased, that story given in the F.I.R. that appellants fired at the deceased, which hit on his motorcycle, is not plausible because it was not the story of the prosecution that appellants were sitting in an ambush. He further submits that complainant party has enmity with other persons and eye-witnesses have admitted that complainant was awarded life imprisonment for the murder of his step-mother that Ghulam Gillani, Inspector D.W.1 had declared Zafar Ahmad appellant as innocent in this case, that as the witnesses are interested and inimical so strong corroboration is required to maintain the conviction of the appellants. He lastly, submits that prosecution has failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal. He has relied upon 2004 SCMR 1185, 1982 SCMR 49, 1999 SCMR 114, 1995 SCMR 1293, 1995 SCMR 1735, 2004 YLR 1469 and 1995 SCMR 896.

6. On the other hand, learned counsel for the complainant, who has also filed revision petition for the enhancement of sentence and appeal against acquittal of Khizar Hayat, Muhammad Iqbal and Ahmad Yar, who are real brothers and accused of abetment, submits that he does not press appeal against acquittal, so the same is dismissed as having been not pressed.

7. He further submits that all the appellants did participate in the occurrence and also facilitated the murder of Haji Muhammad Yar deceased, that Nasrullah P.W.11, who was photographer, reached immediately at the spot after the occurrence and took photographs, which are exhibited on the record and show the signs of fire-arm on the motorcycle, that F.I.R. has been recorded in the police station and not outside the police station. He further submits that empties were sent much earlier from the recovery of fire-arm of accused persons, that first of all empties were sent to the office of fire-arm expert and after the arrest of Azhar Iqbal appellant, recovery of pistol .30 bore was effected and then his pistol was sent to fire-arm expert and one of the empty matched with the pistol of Azhar Iqbal appellant, then the pistol and all the empties were sent back to police station in sealed cover, thereafter, when other accused were arrested and weapons of offence were recovered, then, along with said weapon of offence those empties were sent to fire-arm expert and those also matched with the weapons of offence recovered from Iqbal and Zafar, that during the course of investigation, the police had acted in straight forward manner.

8. As far as, Ghulam Gillani, Inspector D.W.I is concerned, learned counsel submits that when Ghulam Gillani, Inspector took the investigation, challan was already submitted in the trial Court, that as far as, participation of accused-appellants in the occurrence is concerned, that is fully established from ocular account, which is corroborated by the report of fire-arm expert, that Ahmad P.W.14, who is witness of "Waj Takkar", had named Iqbal Traggle as an accused along with others. He lastly, submits that prosecution has proved its case against the appellants beyond any shadow of doubt and they arc not entitled to acquittal.

9. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Facts of the case are that occurrence had taken place on 30-9-2000 at 11-30 a.m. while the matter was reported to the police on the same day at 1-00 p.m., although the distance between police station, and place of occurrence was 14 kilometres. Zafar Ahmad, Azhar Iqbal, Umar Hayat along with one unknown person, who was later on named as Iqbal, was shown as an accused, who fired at the deceased. Umar Hayat (P.O.) is the main accused, who had fired at the deceased, then, there are three accused of abetment, namely, Khizar Hayat, Muhammad Iqbal and Ahmad Yar, who are real brothers inter se and were acquitted by the learned trial Court and against their acquittal appeal had been filed but learned counsel for the complainant had not pressed the same. Two eye-witnesses, namely, Haji Bashir Ahmad and Sohail have appeared before the trial Court, Haji Bashir Ahmad is real brother of the deceased while Sohail is real nephew of deceased and the prosecution gave up one Sultan Ali in this case. Allegations against the appellants were that they fired at the deceased but the said shots hit the motorcycle of Muhammad Yar deceased and. Muhammad Yar along with motorcycle fell on the ground, thereafter, Umar Hayat (P.O.) fired a shot with his gun hitting on the left thigh of Muhammad Yar deceased. After the occurrence two crime empties of .30 bore marked as C.1 and C.2, one crime empty of 7-MM rifle marked as C.3 and one crime empty of .12 bore were recovered from the spot. Zafar Ahmad appellant was arrested on 27-10-2000. At Muhammad Iqbal appellant was arrested on 17-1-2000. At the time of arrest of Zafar Ahmad .30 bore pistol along with three live bullets were recovered and at the time of arrest of Azhar Iqbal .30 bore pistol along with two live bullets while at the time of arrest of Muhammad Iqbal appellant 7-MM rifle along with 8 bullets were recovered. According to the prosecution, three acquitted accused are real brothers of Umar Hayat co-accused (P.O.) while Zafar Ahmad and Azhar Iqbal were his gunmen and Muhammad Iqbal was his party man. As. far as, Zafar Ahmed and Azhar Iqbal are concerned, they are named in the F.I.R., they were the persons, who opened the attack and crime empties recovered from the spot matched with the pistols recovered on their pointation. So far as, sending the crime empties and weapon of offence to fire-arm expert together is concerned, it is a different case in which already crime empties were sent to the office of fire-arm expert on 17-10-2000, thereafter, Azhar Iqbal was arrested. and his pistol was sent to fire-arm expert on 16-11-2000, one crime empty of .30 bore marked as C.I matched with the pistol recovered on the pointation of Azhar Iqbal and along with the said pistol the said crime empties were sent back to the police station and at the arrest of Zafar Ahmad 'and Muhammad Iqbal accused-appellants, those empties and weapon of offence recovered from them were sent to fire-arm expert and according to the report of fire-arm expert Exh.PQ .30 bore crime empty marked as C.2 was fired from the pistol of .30 bore recovered on the pointation of Zafar Ahmad while crime empty marked as C.3 matched with 7 MM rifle recovered on the pointation of Muhammad Iqbal appellants. As far as, Muhammad Iqbal appellant is' concerned, he was not named in the F.I.R. and was named later on by making supplementary statement by the complainant but no identification parade was held. Ahmed P.W.14, who was witness of "Waj Takkar" and whose statement was referred by learned counsel for the complainant, had made dishonest improvements, he was duly confronted and stated during cross-examination that he had told the name of Muhammad Iqbal to the complainant. Had he been there complainant must have mentioned the name of Muhammad Iqbal in the F.I.R. as an accused, even as far as recovery from Muhammad Iqbal appellant is concerned, that was effected from Bamboo trees in a field and it was never sealed into parcel so his participation in the occurrence and recovery seems to be doubtful, therefore, this appeal to his extent is accepted. The conviction and sentence recorded against him is set aside. He is on bail and he shall be discharged from his bail bonds.

10. So far as, Zafar Ahmad and Azhar Iqbal appellants are concerned, they are named in the F.I.R., two eye-witnesses, who have appeared before the trial Court have no animus against them, they are the persons, who had opened the attack although the said fire shots hit on the motorcycle' of the deceased, recoveries were also effected from them and those recoveries matched with the empties recovered from the spot, so they are equally liable under section 34, P.P.C. for the act committed by their co-accused Umar Hayat, who is still P.O., as they have facilitated the commission of murder of the deceased therefore, this appeal to their extent is dismissed. The conviction and sentence recorded against them by the learned trial Court is maintained in toto. They are on bail and they shall be taken into custody by the relevant authority and sent to judicial lock-up to serve out their c remaining part of sentence. So far as, revision petition for the enhancement of sentence filed by Haji Bashir Ahmad complainant against Zafar Ahmad etc. is concerned, as no injury qua the deceased is attributed to Zafar Ahmad and Muhammad Iqbal appellants and the shots fired by them only hit the motorcycle of the deceased, so the sentence awarded to them by the learned trial Court is sufficient to meet the ends of justice because no case in this regard is made out against them. H.B.T./Z-52/L Order accordingly.