MUHAMMAD YAR Versus STATE
Muhammad Yar, Gulsher Ahmad, Muhammad Jehangir and Nazir with Bashir were sent up for trial by Police Station Oadir Abad vide F.I.R. No.70, dated 13-2-1990; for the murder of one Khizar Hayat. Additional Sessions Judge, Gujrat vide his judgment, dated 7-3-1991 gave the benefit of doubt to Bashir and acquitted. Gulsher and Muhammad Yar were convicted under section 302/34, P.P.C. and each of them was sentenced to imprisonment for life with a fine of Rs.30,000, or in default suffer further R.I. for three years. Under section 307/34, P.P.C. both of them were convicted and sentenced to four years' R.I. each with a fine of Rs.10,000 or in default of payment of fine suffer further S.I. for one year each. Jehangir and Nazir were acquitted of the charge under section 302/34, P.P.C., but each of them was convicted and sentenced under section 307/34, P.P.C. to four years' R.I. with a fine of Rs.10,000 or in default to undergo S.I. for one year. It was further directed that the fine if recovered, one-half of it shall be paid to the legal heirs of the deceased. The sentences were to run concurrently. The convicts were also given the benefit of section 382-B, Cr.P.C. The convicts have appealed against their convictions and sentences. Complainant Muhammad Inayat has filed two Revisions. In Criminal Revision, bearing No.189 of 1991 it was prayed that the sentences be enhanced, and in Criminal Revision No.190 of 1991 it was prayed that the conviction and sentences of Gulsher and Muhammad Yar be enhanced to death penalty. Both the revisions were ordered to be heard alongwith this appeal. This judgment shall dispose of the said revisions.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.G./1 recorded on the basis of statement Exh.P.G. of Muhammad Inayat, P.W.S, was to the effect that he had a brother Khizar Hayat and two sisters, namely, Mst. Rashida Bibi and Mst. Ruqiya Bibi, who were virgins. Two/three months before the occurrence, one Shera had asked for the hand of his sister Mst. Rashida for his son Muhammad Yar. First informant's brother Khizar Hayat refused on the ground that said Muhammad Yar was of doubtful character. First informant had got his brother Khizar Hayat and sister Mst. Ruqiya Bibi engaged in the village. Mst. Rashida Bibi was engaged in another village. Baraat of Khizar Hayat was to go on 17-2-1990, and the Baraat of his sister was to come on 18-2-1990. On 13-2-1990 first informant with his brother Khizar Hayat with Sultan and Iftikhar were going to the house of one Muhammad Asghar, Patwari who had invited them. While they were going, they saw Muhammad Yar armed with rifle, with four unknown persons also armed with fire-arms, who could be identified if brought before the first informant. Muhammad Yar raised a Lalkara and simultaneously fired hitting Khizar Hayat on his left thigh. Iftikhar Ahmad, P.W. received injury on his left heel. Sultan was injured on left calf. First informant's brother fell down and ultimately died.
Occurrence took place on 13-2-1990 at 7 p.m. in Village Bherowal, 14 miles from Police Station Qadir Abad. Complaint Exh.P.G. was got recorded by Muhammad Inayat, P.W.5 on 13-2-1990 at 9-15 p.m., which was recorded by Nazir Beg, S.I. P.W.10 at Bheko Morr. Formal F.I.R. Exh.P.G./1 was recorded the same day at 9-30 p.m. by Muhammad Sarwar, A.S.I. P.W.3. Nazir Beg, S.I. P.W.10 on 13-2-1991 ?????????? Bheko Morr, where he recorded the statement Exh.P.G. of Muhammad Inayat, P.W. After recording the statement, he sent the same to the police station for registration of case and himself went to the spot. He prepared injury statement Exh.P.H. and inquest report Exh.P.J. of the deceased and sent the dead body for autopsy. He also prepared injury statement Exh.P.K. and Exh.P.L. of injured Sultan Ahmad and Iftikhar, respectively. blood-stained earth from the spot was secured vide memo. Exh.P.A. He took into possession last-worn blood-stained clothes of the deceased vide memo. Exh.P.C. He recorded the statements of the witnesses and got prepared site plan Exhs.P.H. and P.H./1 from the Draftsman and gave his notes in red ink thereunder. He arrested the accused on 28-2-1990 and 6-3-1990. GuIsher accused got recovered .12 bore gun P.4, which was secured vide memo. Exh.P.D. Muhammad Yar got recovered rifle P.5 and one cartridge P.6 vide recovery memo. Exh.P.E. Muhammad Jehangir also got recovered .12 bore gun P.7 from his Dera vide recovery memo. Exh.P.F. The recovery memos were attested by Khushi Muhammad and Ghulam Muhammad P.Ws. After usual investigation he challaned the accused.
P.W.11 Dr. Pervez Tarar, the then M.S.J.H.Q. Hospital. Phalia, on 13-2-1990 conducted the post-mortem examination on the dead body of Khizar Hayat and observed the following injuries:-
(1) ??????? A fire-arm entry wound 4 c.m. x 4 c.m. on back of left thigh and fire?arm exit wound 4 c.m. x 2.5 c.m. on front'of left thigh. The entry and exit communicated with each other.
(2) ??????? -A fire-arm entry wound 1 c.m. x 1 c.m. on front of left thigh and 6 fire?arm wounds each with 0.1 c.m. x 0.1 c.m. covering an area of 4 c.m. x 4 c.m.
In his opinion, the injuries were ante-mortem and caused with fire-arm: Death had occurred due to shock and haemorrhage on account of the injuries, which were sufficient to cause death.
P.W.12 Dr. Tariq Mahmood, R.H.C. Bherowal Bheko Morr, on 13-2-1990 medically examined Iftikhar Ahmad and found one fire-arm injury, which was declared simple.
On the same day he also examined Sultan Ahmad and found a fire?arm injury, which was also declared simple.
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3. Prosecution in support of its case produced 12 witnesses in all. P.W.1 Muhammad Bakhsh had witnessed the recovery of blood-stained earth and signed the memo. Exh.P.A. P.W.2 Khushi Muhammad had identified the dead body of Khizar Hayat and also witnessed the recovery of .12 bore gun P.4 at the instance of Gulsher and signed the memo. He had also witnessed the of Muhammad Yar and gun P.7 at the instance of Jehangir. He signed all the memos. P.W.3 Muhammad Sarwar, A. A. I. had registered formal F.I.R. Exh. P.G./1. Ocular account was furnished by Muhammad Inayat, Sultan Ahmad and Iftikhar Ahmad, P.Ws. 5, 7 and 8, respectively. P.W.6 Akhtar Naqqash, Draftsman, had prepared the site plan Exhs. P.H. and P.H. 1 Nazir Baig, S.I., P.W.10 had investigated the case. Dr. Parvaiz Tarrar, P.W.11 had conducted the post-mortem examination on the dead body of Khizar Hayat, and Dr. Tariq Mehmood, P.W.12 had examined the injured
At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They, however, neither appeared in their defence on oath nor produced any defence evidence.
4. It was contended by learned counsel for the appellant that the prosecution has not been able to establish its case beyond doubt. Argued that except for Muhammad Yar, none of the appellants were mentioned in the F.I.R. and, in such circumstances, no identification parade was held, therefore, case qua them was ektremely doubtful. Submitted that as far as other eye?witnesses are concerned, no reliance on their statements could be placed because there is no explanation why they omitted to give the names of other accused except for Muhammad Yar, to the first informant. Argued that even otherwise no reliance on their statements could be placed qua the convicts because Muhammad Inayat, first informant had stated that the accused persons had muffled their faces. Argued that the recovery of guns would not be of any use because no empty was recovered. The contentions were opposed by learned counsel for the State.
5. I, have heard the learned counsel and gone through the file. The prosecution in order to establish its case has mainly relied upon ocular account furnished by Muhammad Inayat, Sultan Ahmad and Iftikhar Ahmad, P.Ws.5, 7 and 8, respectively. Muhammad Inayat, P.W.5 gave a detailed account of the occurrence and ascribed specific role to each of the accused. In cross? examination he admitted that he knew some of the accused persons prior to the occurrence also but could not identify them as they had muffled their faces. He further admitted that he had learnt about the names of other accused persons later and he made supplementary statement 4/5 days after registration of the case. A careful perusal of the statement of this witness reveals that he was unable to identify the assailants, except for Muhammad Yar, because of the fact that they were neither known to him nor their faces were visible. No identification parade was ever held. In such circumstances, no reliance on the statements of this witness qua Gulsher. Muhammad Jehangir and Nazir can be placed.
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As far as Sultan Ahmad and Iftikhar, P.Ws.7 and 8, are concerned, they have given a detailed account of the occurrence. They have named each of the convict and ascribed a specific role. The objection with regard to their statement is same which is against the statement of Muhammad Inayat. If the contention be accepted that they knew the assailants, yet the question of identification would still be relevant in view of the statement of Muhammad Inayat, P.W., who stated that they had muffled their faces. I have noticed that except for Muhammad Yar, all the other accused belonged to different villages. Even if complete reliance on the statements of the eye-witnesses is placed, yet 18 the case against Gulsher Ahmad, Muhammad Jehangir and Nazir ,would remain doubtful on account of question of identification. The chances of mistaken identity cannot be ruled out.
As far as the case of Muhammad Yar is concerned, he belongs to the village of Muhammad Inayat. He was known to them. He alone had motive. In such circumstances, the question of mistaken identity cannot arise in his case. The eye-witnesses were cross-examined qua his participation but nothing could be brought on the record to create any sort of doubt in the statement of the witnesses: which could entitle Muhammad Yar to benefit of doubt.
For what has been discussed above, I hold the participation of Gulsher, Nazir and Jehangir is not free from doubt. Therefore, giving them D benefit of doubt as an abundant caution, their appeal is accepted and they are acquitted. They are on bail. Their bail bonds shall stand discharged.
As far as Muhammad Yar is concerned, his participation in the occurrence has been established beyond doubt. Therefore, his appeal fails he E is on bail. He shall be taken into custody to serve the remaining portion of his sentence.
For the same reasons, Criminal Revisions Nos.189 and 190 of l991 filed by the complainant are dismissed.
N.H.Q./M-1693/L ?????????????????????????????????????????????????????????????????????????????? Order accordingly.