MUHAMMAD USMAN Versus STATE

Lehrasap Khan J. -- The appellants, (1) Usman aged 50 years son of Jahangir Khan; (2) Wali Muhammad aged 35 years son of Noor Ahmad; (3) Said Muhammad aged 28 years son of Wali Muhammad; (4) Faiz Ahmad aged 32 years son of Wali Muhammad; (5) Muhammad Amin aged 40 years son of Muhammad ldrees; (6) Chiragh aged 28 years son of Jahangir Khan; and (7) Allah Din aged 32 years son of Muhammad ldrees; were tried alongwith Shaman, Khan Muhammad and Noor Ahmad (acquitted accused) by a learned Additional Sessions Judge, Sahiwal, for offences punishable under section 148, P.P.C. and section 302/149, P.P.C for forming themselves into an unlawful assembly having armed themselves with deadly weapons like guns rifles and pistols with a common object to murder Jafar, Hafiz Mamtaz Ahmad and Abdul Hamid Patwari, deceased on 4th December, 1973, at 7-00 a.m. in the area of village Hakim Sadharke, tehsil Dipalpur, district Sahiwal -and for intentionally committing the murder of Jaffar deceased, Hafiz Mumtaz Ahmad and Abdul Hamid Patwari on the same day, time and place in prosecution of the common object of the aforesaid unlawful assembly.

2. The learned trial Judge vide his judgment dated 23rd May, 1979 convicted Usman, Chiragh, Said, Faiz, Wali Muhammad, Allah Din and Amin, appellants under section 148 and section 302/149, P.P.C. He sentenced the afore-mentioned seven appellants to one year's R.I. each under section 148 P.P.C. Usman appellant was held liable for causing the fatal shot to Jafar deceased. He has, therefore, been sentenced to death on the said count while the remaining six appellants have been sentenced to imprisonment for life for causing death of Jafar deceased. All the appellants have also been fined Rs.5,000 or in default to suffer three months' R.I. each on the said count. For causing the deaths of Hafiz Mamtaz Ahmmad deceased and Abdul Hamid Patwari deceased, all the appellants have been sentenced to imprisonment for life and to pay fine of Rs.5,000 each or in default to suffer R.I. for three months each on each count. The learned trial Judge, however, acquitted Noor Ahmad, Shaman and Khan co-accused by extending benefit of doubt to them.

3. The appellants have appealed against their afore-mentioned conviction and sentence through Criminal Appeal No.697 of 1979.

4. The matter is also before us having been referred under section 374, Cr.P.C. seeking confirmation of sentence of death awarded to Usman appellant.

5. Mir Khan, the complainant, has also filed Criminal Revision (Criminal Revision No. 677 of 1979) against the acquittal of Shaman, Khan Muhammad and Noor Ahmad and for enhancement of sentence of Usman, Chiragh, Said Muhammad, Faiz, Muhammad Amin, Allah Din, Khan Muhammad and Wali Muhammad, under section 302/149, P.P.C. on the charge of murder of Hafiz Mamtaz Ahmad deceased, and Abdul Hamid Patwari deceased and also for enhancement of sentence of Chiragh, Said Muhammad, Faiz, Allah Din, Khan and Wali Muhammad on the charge of murder of Jafar deceased.

6. Chiragh, Muhammad Amin, Said Muhammad and Faiz Ahmad, have also been convicted under section 13 of the Arms Ordinance XX of 1965, and sentenced to two years' R.I. each inasmuch as during the investigation of this murder case, unlicensed arms were allegedly recovered from these appellants which they allegedly used during the course of occurrence. They have, therefore, appealed against their conviction and sentence under the Arms Ordinance as well through separate appeals.

7. All the aforementioned matters shall be disposed of by this judgment.

8. The F.I.R. account of the prosecution version is that Hafiz Mamtaz Ahmad deceased and Abdul Hamid Patwari deceased happened to be at the Dera of Hafiz Mamtaz Ahmad deceased in village Hakim Sadharke during the night between 3rd/4th December,1973. In the succeeding morning i:e. 4th December, 1973 Mir Khan complainant (P.W.15) and his brother Muhammad Jafar' deceased also went to the Dera of Hafiz Mamtaz Ahmad. In the meantime, Shaukat Hayat (P.W.17) and his- servant Muhammad Amir (not produced) also arrived at the said Dera. At about 7-00 a.m. Hafiz Mamtaz Hamad deceased and Abdul Hamid Patwari deceased followed by Muhammad Jafar deceased came out of the Dera for going to Dipalpur. Mir Khan complainant, Shaukat Hayat P .W. and Muhammad Amir his servant also reached at the door of the Dera. Muhammad Jafar deceased by that time reached near the door of one Wali Muhammad Wattoo. Suddenly, the door of the said house opened and Usman, Chiragh, Faiz, Amin, and Wali Muhammad armed with guns, Said and Allah Din armed with rifles emerged out of the said house. Usman fired at Muhammad Jafar deceased hitting him at his left cheek. After receiving the gun shot injury Jafar fell down. Hafiz Mamtaz Ahmad and Abdul Hamid Patwari who were going ahead of Jafar by a few paces on hearing the alarm of gun fire ran for their lives along the western wall of the Dera. All the afore-mentioned assailants chased them while firing. After a short while, the assailants went towards the North. Mir Khan, Shaukat Hayat, and Muhammad Amir reached the Ahata of Shaban Sheikh to enquire about

Hafiz Mamtaz Ahmad as they heard tire alarm from that side. Muhammad Sharif (not produced), Muhammad Hanif son of Bagh Ali (P.W.13) and Hafiz Muhammad Ramzan (P.W.10) were already present in the said Ahata Hafiz Mamtaz Ahmad deceased was found dead inside the Ahata along the northern wall. Abdul Hamid Patwari deceased was also found dead towards further north outside the Ahata in the field from which paddy crop had already been harvested. Muhammad Sharif, Muhammad Hanif and Hafiz Muhammad Ramzan aforesaid told Amir Khan, Shaukat Hayat and Muhammad Amir that the assailants namely Usman, Chiragh, Faiz, Said, Amin, Allah Din, and Wali Muhammad, who were armed with guns and rifles chased Hafiz Mamtaz Ahmad and Abdul Hamid Patwari while firing. They fired at both the deceased with their respective weapons and killed Hafiz Mamtaz Ahmad and Abdul Hamid Patwari deceased. This second incident was witnessed by aforesaid Muhammad Sharif, Muhammad lianif and Hafiz Muhammad Ramzan.

9. As regards motive, it is stated in the F.I.R. that about seven years earlier Haji Sikandar Khan father of Hafiz Mamtaz Ahmad deceased, purchased land from Muhammad Ali Wattoo. Jahangir, the father of Usman and Chiragh appellants filed a pre-emption suit against that sale and the suit was still pending in the Court of a Civil Judge at Dipalpur. A fight ensued between the two factions over the possesion of the said land. In that case Hafiz Mamtaz Ahmad deceased etc. were challened. Ghulam brother of Wali Muhammad exchanged land with Mir Khan complainant and his brother Jafar deceased. Wali Muhammad father of Said and Faiz, etc. wanted to get back that land and filed a civil suit which was till pending. About four months prior to this occurrence, Amin appellant and Idrees father of the appellant had a fight with Hafiz Mamtaz Ahmad deceased because they arranged marriage of the daughter of paternal aunt of the complainant, with Allah Din although the complainant and his relatives were not agreeable to it. In that case, Hafiz Mamtaz Ahmad deceased and others were challaned. Wali Muhammad appellant purchased land from Mst. Suban. etc. the widows of village Pasail. Hafiz Mamtaz Ahamd deceased helped the widows to initiate litigation in the High Court at Lahore against Wali Muhammad. It is alleged that on account of afore mentioned grievances Usman, Chiragh, Faiz, Said, Amin, Allah Din and Wali Muhammad, in furtherance of their common object murdered Hafiz Mamtaz Ahmad, Muhammad Jafar and Abdul Hamid Patwari.

10. Mir Khan complainant deputed Niaz brother of Hafiz Mamtaz Ahmad deceased and Haji Muhammad Younis to guard the dead bodies at the spot while he himself accompanied by Haji Muhammad Amir Wattoo went to the Police Station, Dipalpur, at a distance of 12 miles from the place of occurrence and lodged the report Exh.P.N./A at 8-15 a.m. on the same day. The report was recorded by Abdul Khaliq Niazi S.I. (P.W.18).

11. It is noteworthy that there is no mention of Shaman, Noor Ahmad and Khan Muhammad, acquitted accused in the F.I.R. nor any role is attributed to them therein. During the trial, however Abdul Hafeez (P.W.14) has been examined to say that on the day of occurrence at 7-00 a.m. he heard the report of gun fires. He and Haq Nawaz (not produced) were present in the street. They saw that Shaman, Khan Muhammad and Noor Ahmad armed with pistols were firing towards Hafiz Mamtaz Ahmad and Abdul Hamid Patwari deceased. The said assailants were standing outside the Ahata of Hafiz Muhammad Ramzan when they were firing towards Hafiz Mamtaz Ahmad and Abdul Hamid Patwari deceased. Thereafter, the said assailants as well as Wali Muhammad, Usman, Chiragh, Faiz, Said, Amin and Allah Din went away towards the north alongwith their respective weapons. After a short while this witness and Haq Nawaz went to the Ahata of Hafiz Muhammad Ramzan and there they narrated the incident to Hafiz Muhammad Ramzan, Hanif, Sharif, Shaukat Hayat and Muhammad Amir.

12. Abdul Khaliq Niazi, S.1 (P.W.18) after recording the F.I.R. Exh.P.N./A went to the spot. He prepared Injury Statement and Inquest Report Exh.P.Z. and P.Z./1, respectively in respect of Jafar deceased. He prepared the Injury Statement and Inquest Report Exh. P.A.A. and P.A. A./;, respectively in respect of Abdul HamidPatwari. He also prepared the Injury Statement and Inquest Report Exh.P.R.S. and Exh.P.B.B./1, respectively in respect of Hafiz Mamtaz Ahmad deceased. He despatched the dead bodies under the escort of Taj Muhammad F.C. (P.W.3) to the mortuary for autopsy. He collected blood-stained earth from underneath the dead body of Muhammad Jafar deceased vide recovery memo. Exh.P.O. and made the same into a sealed parcel. He also secured a 12 bore crime empty P.27 from near the dead body of Muhammad Jafar deceased vide recovery memo. Exh.P.Q. and made it into a sealed parcel. He secured 2 crime empties of 7 M.M. bore P.33/1-2 and 2 missed bullets of 7 M.M. bore P.34/1-2 from the spot and made the same into a sealed parcel vide recovery memo. P.R./C. He also secured 2 crime empties of 12 bore P.35/1-2 and a crime empty of 303 bore P.36 from the spot and made into a sealed parcel vide memo. Exh.P.R. He secured 4 empties of 7 M.M. bore P.37/1-4 and an empty of 12 bore P.38 from the spot and made the same into a sealed parcel vide memo. Exh.P.R./A. He took into possession 2 empties of 303 bore P.39/1-2 and 2 empties of 7 M.M. bore P.40/1-2 and an empty of 12 bore P.41 and made the same into a sealed parcel vide memo. Exh. P.R./B. He secured blood-stained earth from the spot from underneath the dead body of Abdul Hamid Patwari deceased and made it into a sealed parcel vide memo. Exh.P.S. He also secured an empty of 12 bore P.28, 2 empties of 7 M.M. bore P.29/1-2 and 3, 12 bore empties P.30/1-3 from near the dead body of Abdul Hamid Patwari and made the same into a sealed parcel vide memo. Exh.P.T. He secured blood-stained earth from the spot from underneath the dead body of Hafiz Mamtaz Ahmad deceased which was lying in the Ahata of Shaban Sheikh and made the same into a sealed parcel vide memo. Exh.P.U. He secured 2 empties of 303 bore P.32/1-2 and a 12 bore live cartridge P.31 from near the dead body of 4afiz Mamtaz Ahmad deceased and made the same into a sealed parcel vide memo. Exh.P.V. Shaukat Hayat P.W. produced Ruqqa Exh.P.X. which was taken into possession vide memo. Exh.P.X./A. He handed over 10 sealed parcels of this case to Muharrar Head Constable of Police Station, Dipalpur, for safe custody in Police Station Malkhana.

13. Taj Muhammad F.C after the post-mortem examination produced last worn clothes P.1 to P.6 of Hafiz Mamtaz Ahmad deceased which were secured vide memo. Exh.P.B. The said Constable also produced last worn clothes P.7 to p.12 of Abdul Hamid Patwari deceased which were taken into possession vide memo. Exh.P.C. Taj Muhammad had also produced last worn clothes P.13 to P.21 of Muhammad Jafar deceased and the same were secured vide memo. Exh.P.D.

14. Chiragh, Faiz, Said and Usman appellants were arrested in this case on 24th January, 1974. While in custody Chiragh on 25th January, 1974 led to the recovery of 12 bore gun P.22 from underneath the beddings lying on a Charpai in his residential Kotha and the same was secured and sealed into a parcel vide memo. Exh.P.E. On the same day, Faiz accused while in custody led to the recovery of 12 bore gun P.24 from his house which was secured and sealed into a parcel vide memo. Exh.P.G. On the same day, Said accused while in custody got recovered 7 M.M. rifle P.23 from his residential Kotha and the same was secured and made into a sealed parcel vide memo. Exh.P.F.

15. Abdul Khaliq Khan S.1. (P.W.18), arrested Muhammad Amin Allah Din and Khan accused on 25th January, 1974. Muhammad Amin while in custody led to the recovery of 12 bore gun P.22 from his cattle pen in the area of village Pasail which was made into a sealed parcel vide memo. Exh.P.H. Khan accused while in custody got recovered pistol 12 bore P.26 from his residential Kotha and the same was made into a sealed parcel vide memo. Exh.P.J. Noor Ahmad and Shaman were arrested on 28th January, 1974. Wali Muhammad accused had been absconding and proceedings under section 87/88 were resorted to against him. Site plans Exhs.P.A./1 and P.A./2 were got prepared by Salim Ullah Draftsman. The notes in red ink in these plans are in the hand of Abdul Khaliq Niazi. After completing the investigation, he submitted the challan.

16. On 5th December, 1973 at 7-00 a.m. Dr. Muhammad Aslam (P.W.6) the then Medical Officer, Civil Hospital, Dipalpur, carried out the autopsy on the dead body of Abdul Hamid Patwari deceased. He noticed 2 fire arm wounds of entrance in case of this deceased and in the opinion of Dr. Muhammad Aslam, the deceased died of these injuries which were ante-mortem, dangerous to life and sufficient to cause death in the ordinary course of nature. These injuries resulted in fractures of spine and ribs and ruptures of spinal cord, kidney, pleurae, and lungs. Exh.P.K. is the carbon copy of the post-mortem report while Exhs.P.K./1 and P.K./2 are the pictorial representations regarding location of the injuries. 9 pellets and 1 was removed from the body of the deceased were also handed over to Taj Muhammad F.C. after post-mortem examination.

17. On the same day, at 8-00 a.m. Dr. Muhammad Aslam performed the post-mortem examination on the dead body of Hafiz Mamtaz Ahmad deceased. He noticed 4 fire-arm wounds of entrance with corresponding wounds of exit in regard to 3 out of 4 injuries on his person. All the injuries were opined to be ante-mortem. Injuries 1 , 2 and 3 were dangerous to life. Injury No.4 was simple. Injuries 1, 2, and 3 were sufficient to cause death in the ordinary course of nature. Exh.P.L. is the carbon copy of the post-mortem examination report while Exhs.P.L./1 and P.L./2 are the diagram showing the location of the injuries. 2 pellets and 1 wad were recovered from the body of the deceased.

18. On the same day at 10-00 a.m. Dr. Muhammad Aslam performed the post-mortem examination on the dead body of Muhammad Jafar deceased. He noticed 1 injury of entrance comprising 2 fire-arm wounds on the upper part of the neck on the right and left side. The corresponding wound of exit was on the left cheek. These injuries were ante-mortem and dangerous to life and sufficient to cause death in the ordinary course of nature. Exh.P.M. is the carbon copy of the post-mortem report while Exhs.P.M./1 and P.M./2 are the diagrams indicating the location of injuries. 2 pellets and 1 wad were recovered from the dead body of Jafar deceased. In case of all three deceased, injuries contained burning and tatooing.

19. The appellants as well as the acquitted accused namely Shaman, Khan Muhammad and Noor Ahmad denied the charges and pleaded that they were falsely implicated in the case due to party faction and enmity with the complainant party. No evidence in defence has been produced except that Usman appellant produced documentary evidence viz. copy of the death entry of mst. Zohra, copy of pedigree table of village Laduke Sukha relating to Jagga Khan and his brother Sikandar. Copy of the statement of Wali Muhammad father of Faiz accused in the pre-emption suit, copy of Mutation No.29 relating to gift by Mst. Hajra in favour of Khizar Hayat, and copy of register Haqdaran of village Sadawar Sidharke. These documents have been produced to show deep routed enmity between the family of this appellant and those of the complainant and Shaukat Hayat P.W.

20. From the resume of the afore-mentioned facts of the present case, it transpires that the occurrence consists of two incidents, one in which Jafar was murdered and the other in which Hafiz Mamtaz Ahmad and Abdul Hamid Patwari were murdered.

21. As regards first incident pertaining to the murder of Jafar deceased, the prosecution has examined Mir Khan complainant (P.W.15) and Shaukat Hayat (P.W.17) as eye-witnesses. The testimonies of these two eye witnesses are to the effect that when Jaffar deceased reached at the door of the house of Wali Muhammad the seven appellants emerged form that house armed with guns and rifles. Usman appellant fired at Jafar deceased with gun hitting him at his left cheek. Out of these two P.Ws., Mir Khan is the brother of Muhammmad Jafar deceased. He has enmity with the appellants as disclosed by him in the F.I.R. The other P.W.1 namely Shukat Hayat is related to the complainant and Hafiz Mamtaz Ahmad deceased by marriage as admitted by him. Muhammad Amin (P.W.8) uncle of Shaukat Hayat has appeared as witness of recoveries. He denied the suggestion that his brother Sardar Muhammad Jafar had helping the complainant party during the investigation. In `case of such interested and inimical witnesses, independent corroboration is always insisted upon. No such corroboration is, however, forthcoming in this case. The medical evidence has believed the testimonies of Mir Khan and Shaukat Hayat inasmuch as according to them, Usman appellant fired at Jafar hitting him at the left cheek but according to the medical evidence, the injury p at the left cheek of the deceased was the exit wound. The injury of entrance in his case was on the upper part of the neck on the right side and on the left side at mid-line. A 12 bore crime empty P.27 is alleged to have been recovered from near the dead body of Muhammad Jafar deceased vide recovery memo. Exh.P.Q. This crime empty as per report Exh.P.Y. received from the office of the Director, Forensic Science Laboratory and statement of Sheikh Muhammad Din Fire Arms Expert (P.W.16) did not match with the gun recovered from Usman appellant. It rather matched with the gun recovered from Muhammad Amin accused.

22. So far as the second incident is concerned in which Hafiz Mamtaz Ahmad and Abdul Hamid Patwari deceased were killed, Hafiz Muhammad Ramzan, Muhammad Hanif and Abdul Hafeez have been examined at the trial as eye-witnesses. Muhammad Hanif has admitted that Hafiz Mamtaz Ahmad deceased was his paternal-cousin. Similarly, Abdul Hafeez (P.W.14) admitted that Hafiz Mamtaz Ahmad deceased as well as Hanif P.W. were his first cousins. In this manner Muhammad Hanif and Abdul Hafeez being close relations of Hafiz Mamtaz Ahmad deceased are interested witnesses. Not much credence can be placed on these P.Ws. as apart from being relatives of the deceased it is an established fact that there was deep rooted enmity between families of Hafiz Mamtaz Ahmad deceased and those of the appellants. It is also to be noticed that Abdul Hafeez (P.W.14) does not figure in the F.I.R. He has been examined at the trial to depose against Shaman, Khan Muhammad and Noor Ahmad (acquitted accused) to whom no role has been ascribed in the F.I.R. and who have not been mentioned in that report altogether. Hafiz Muhammad Ramzan (P.W.10) of course is not related to the deceased persons. He lives alongwith Shaban in the Ahata in which Hafiz Mamtaz Ahmad is alleged to have been killed. He is thus seemingly unconnected witness. Apart from the role attributed to Chiragh, Faiz, Amin, Said, Allah Din, Wali Muhammad and Usman relating to murder of Hafiz Mamtaz Ahmad and Abdul Hamid Patwari this witness stated at the trial that Abdul Hafeez and Haq Nawaz P.Ws. came to him in the Ahata and told him that Khan, Shaman, and Noor Ahmad accused were seen by them hiding in the east-western corner outside the Ahata and all of them were armed with pistols and that they had also fired at Abdul Hamid Patwari and Hafiz Mamtaz Ahmad deceased. This part of his statement is an improvement at she trial. He did not state so in his statement made before the Police under section 161, Cr.P.C. These acquitted accused namely Khan, Shaman, and Noor Ahmad do not figure in the F.I.R. Their participation in the occurrence was introduced subsequently. One Sardar Ali (P.W.5) who is the recovery witness has admitted that the villagers arrested Khan, one of the acquitted accused armed with pistol from the cotton crop. It appears that after his arrest by the villagers, the prosecution introduced Khan, Shaman and Noor Ahmad also as accused persons in this case and for this purpose they examined Abdul Hafeez (P.W.14) at the trial although, he does not find mention in the F.I.R. as an eye-witness. Similarly, in order to oblige the prosecution, Hafiz Muhammad Ramzan who is ostensibly an unconcerned witness has stated that he was informed in his Ahata by Abdul Hafeez and Haq Nawaz about the role played by Khan, Shaman and Noor Ahmad (acquitted co-accused). A witness who is capable of IC obliging the prosecution and making of improvements cannot be relied upon although seemingly he may be an independent witness. In Muhammad Rehman and 2 others v. The State P L D 1976 Lah.1403 it was held that the mere fact that a witness had no previous animosity with the accused persons is not sufficient to lable him as a truthful witness. While testing the veracity of a witness, the Court should not only consider whether the witness had any motive to give false evidence but should also see whether version given by him was probable or not. Similarly, in Muhammad Iqbal and another v. The State 1978 P Cr. L J 670 it has been ruled that even if a witness was ostensibly unconnected with the, deceased, it was not necessary that he was a witness of truth. The test of the veracity of a witness is the intrinsic worth of the statement made by him. According to Munir's Commentary on the Evidence Act, "failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of fact." In the light of what has gone above, not much reliance can be placed on the testimony of Hafiz Muhammad Ramzan either.

23. So far as the recoveries are concerned, all the recoveries from the appellants have been witnessed by two persons, namely Sardar Ali (P.W.5) and Muhammad Amin (P.W.8). Muhammad Amin is the uncle of Shaukat Hayat P.W. They are related to Hafiz Mamtaz Ahmad by marriages Muhammad Amin as well as Sardar Ali do not belong to the villages from where recoveries are alleged to have been made. On the first occasion they met the Investigating Officer by chance and were made to join the recoveries. On -the second occasion, the Investigating Officer came to their respective villages and made them to accompany him to witness the recoveries. These two P.Ws. have no property in the villages in which recoveries were made namely the villages of Nawan Kot, Pasail and Hakim Sadharke. No person belonging to the said three villages is a witness to the recoveries. Muhammad Amin has admitted that the residents of the said villages were present. There is no evidence on the record as toy when Abdul Khaliq Niazi (P.W.18) deposited the sealed parcels containing arms allegedly recovered from the appellants at the Police Station Malkhana and with whom he so deposited. It has also been conceded at the bar by the learned counsel for the complainant as well as the one for the State. His statement in this behalf has also been belied by testimonies of Irshad Ahmad (P.W.2), Muhammad Siddique retired A.S.I. (P.W.7) and Murid Hussain A.S.I. (P.W.11).

24. So far as Shaman, Khan and Noor Ahmad (acquitted accused) are concerned, as already observed, they have not been ascribed any role in the F.I.R. They do not find mention in the statements of eye-witnesses namely Hafiz Muhammad Ramzan, Muhammad Hanif and Sardar Shaukat Hayat, recorded under section 161, Cr.P.C. They do not find mention even in the Inquest Reports pertaining to all the three deceased. Abdul Hafeez (P.W.14) who has not been shown as eye-witness in the F.I.R. has been introduced at the trial to say that he and Haq Nawaz saw Shaman, Khan Muhammad and Noor Ahmad accused armed with pistols and firing towards Hafiz Mamtaz Ahmad and Abdul Hamid Patwari deceased. As per contents of the site plans Exh.P.A. these three accused are alleged to have fired with their pistols at Abdul Hamid Patwari and Hafiz Mamtaz Ahmad deceased from point No.8. They could not obviously fire at Hafiz Mamtaz Ahmad deceased as he was inside Ahata of Shaban Sheikh and about 8 feet high wall intervened the three accused and the place of presence of Hafiz Mamtaz Ahmad. Similarly, there is distance of 29 feet between point No.8 the place of presence of the accused and point No.4 Where Abdul Hamid ~Patwari was fired at. According to post-mortem report burning and tatooing were noticed in case of all the injuries to' Abdul Hamid Pawari and so is the case of injuries to Hafiz Mamtaz Ahmad. Fire-arm injuries caused from a distance of 29 feet could not obviously cause burning and tatooing. The statement of Abdul Hafeez is thus falsified by the medical evidence. The learned counsel for the complainant made a statement at the bar to the effect that he did not press Revision Petition against the acquittal of Shaman, Khan Muhammad and Noor Ahmad.

25. The learned trial Judge has examined Ghulam Muhammad Khan Niazi, Pensioner D.S.P as C.W.1 and Ch. Gulzar Ahmad, D.S.P. as C.W.2. In 1974 Ghulam Muhammad Khan Niazi was posted as D.S.P. Taunsa while Ch.Gulzar Ahmad, D.S.P. was posted as Inspector Crimes Branch, Lahore. Ghulam Muhammad Khan Niazi partly investigated this case under the orders of the then D.I.-G. Multan Range while Ch. Gulzar Ahmad partly investigated the case under the orders of the D.I.-G. Crimes. The result of the investigations carried out by these D.S.Ps. did not support the prosecution case in toto.

26. In the light of the above discussion, we find that the prosecution E has failed to bring home the guilt to the appellants beyond reasonable doubt. We also hold that in the above circumstances, the learned trial Judge was justified in acquitting Shaman, Khan and Noor Ahmad.

27. In this view of the matter, we allow the appeal, set aside the conviction and sentence of the appellants and acquit them by allowing F the benefit of doubt. The Revision Petition also fails and is, therefore, dismissed. We have not believed the recoveries, therefore, we also allow the appeals under the Arms Ordinance and acquit the appellants.

28. The death sentence awarded to Usman appellant is Not confirmed.

M.Y.H. Appeal allowed.