1994 PLP 1155 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This order will dispose of two appeals by four convicts bearing Criminal Appeals Nos.157 and 158 of 1990 as well as the two appeals by the complainant bearing Nos.159 and 160 of 1990 against the acquittal of three accused and for enhancement of the sentence of the four convicts.

2. Relevant facts are that (1) Muhammad Ashraf alias Achha, his son (2) Zahid Hussain alias Munna, (3) Haroon‑ur‑Rehman alias Noni, (4) Muhammad Arif alias Dana, (5) Muhammad Musa, (6) Naseer alias Jeera and (7) Muhammad Khalid were tried under section 302/148/149, P.P.C. by a learned Additional Sessions Judge, Lahore who found them guilty under section 302/149, P.P.C. and sentenced them to imprisonment for life and for other offences with minor punishments vide judgment dated 3‑5‑1988. The seven convicts filed appeals and the complainant for enhancement of sentences. All these matters were taken up by a learned Judge of the Lahore High Court who allowed the appeal of three accused namely Muhammad Ashraf alias Achha, Muhammad Arif alias Dana and Muhammad Khalid. However, the conviction of the four accused namely Zahid Hussain alias Munna, Haroon‑ur‑Rehman alias Noni, Muhammad Musa and Naseer alias Jeera was maintained. They were convicted instead of under section 302/149 under section 302/34, P.P.C. The sentences remained the same, that is to say, imprisonment for life and fine of Rs.10,000 each, in default of three years R.I. each. They were acquitted under section 148, P.P.C.. Fines if realised was to be paid as compensation to the heirs of the deceased. Criminal Revisions of the complainant were dismissed. This is vide judgment dated 15‑11‑1988. The four convicts filed petitions for leave to appeal and the complainant against the acquittal of three accused and for enhancement of the sentences of the four convicts. Both sides were granted leave to appeal.

3. The occurrence had taken place at Mughrab‑wela on 11‑9‑1986 in which Muhammad Azam was killed. The motive given in the F.I.R. was opening of a Office of a political party which was said to be opposed by the accused side. There had been a dispute and fight between the parties 3/4 days earlier. Two eye‑witnesses appeared' at the trial namely Iftikhar Ahmad brother of the deceased P.W.9 and Tahir Masood P.W.10. Learned counsel for the convicts has submitted that the learned Judge of the Lahore High Court maintained the conviction of the four convicts "on the basis of ocular evidence which is corroborated by recovery of blood‑stained knife and Dagger. The medical evidence has also supported the ocular evidence furnished by Iftikhar Ahmad P.W.9 and Tahir Masood P.W.10". Learned counsel for the convicts pointed out that no recovery was effected from Zahid Hussain alias Munna. Recovery of Khanjar from Haroon ur Rehman alias Noni is of no avail as no result was obtained that it was blood‑stained. It was further submitted that during the course of investigation Zahid Hussain alias Munna had been found to be innocent; further that the medical evidence did not support that Zahid Hussain alias Munna had wielded "Bugda" on the head, because the injury was not grievous in nature and was deposed to by the doctor P.W. 15 that it would be superficial. So also was the injury attributed to Haroon‑ur‑Rehman alias Noni. He further submitted that the injury attributed to Muhammad Musa is also not supported by the medical evidence. He lastly submitted that in the absence of reliable evidence against all others, Naseer alias Jeera is also not proved to be guilty beyond reasonable doubt.

4. Learned counsel for the complainant of course contended that the acquitted accused should have been convicted and the sentence of the convicts should be enhanced. However, he has not been able to controvert the precise submissions made by the learned counsel for the convicts/appellants on the facts. Learned counsel for the State supported the judgment under appeal.

5. The motive of political rivalry as alleged in the FIR has not been accepted by the High Court. It was found that it was on account of the previous fight amongst the young people on both sides. The learned Judge fell in error in the judgment under appeals that the ocular testimony was corroborated by the recoveries as far as Zahid Hussain alias Munna and Haroon‑ur‑Rehman alias Noni are concerned. No recovery was effected from Zahid Hussain alias Munna and the recovery of `Khanjir' from Haroon ur Rehman alias Noni is of no avail because no result was obtained that it was stained with human blood. As far as Muhammad Musa and Naseer alias Jeera are concerned, the recovery witnesses are the complainant and the Investigating Officer. The injury attributed to Muhammad Musa is not corroborated by the medical evidence.

6. In view of the submissions made by the learned counsel for the convicts, not controverted by the learned counsel for the complainant and the State, and for the reasons given above, we are of the view that the guilt of Zahid Hussain alias Munna, Haroon‑ur‑Rehman alias Noni and Muhammad Musa is not proved beyond a reasonable doubt. Therefore, their appeals are accepted and they are acquitted of the charges levelled against them. However, as far as Naseer alias Jeera is concerned, the ocular testimony corroborated by the recovery as well as the medical evidence, relied upon by the two Courts below, call for no interference by this Court. Therefore, his appeal is dismissed. He may however be given the benefit of section‑382‑B, Cr.P.C. The appeals of the. complainant, in view of the above, fail and are dismissed. The result is that CrA. No.157 of 1990 succeeds in part, while Cr.A.No.158 of 1990 filed by Muhammad Musa is accepted. However, Cr. Appeals Nos. 159 and 160 of 1996 fail and are hereby dismissed. N.H.Q./H‑183/S ???????????????????????????????????????????????????????????????????? Order accordingly.