AMIR ZAMAN vs MAHBOOB And Other

ASLAM RIAZ HUSSAIN, J.--This Appeal by Amir Zaman is directed against the judgment of the Lahore High Court, dated 10-4-1978, acquitting Mahboob and Sultan Mahmood respondents.

2. The fact giving rise to this Appeal, briefly, are that the to respondents and 3 others, namely, Muhammad Yaqoob, Ali Asghar and Mansab Dar, were accused of the murder of Dost Muhammad and causing injuries to Muhammad Zaman and Khushhal Khan, P.Ws at 6-30 p.m. On 8-7-1973 in Village Pind Bhainso, District Rawalpindi. Muhammad Zaman (P.W. 12) (brother of the deceased) lodged the F.I.R. At Police Station Kallar Sayedan at 1 a.m. (at midnight) which was recorded by Malik Sher, S.I. (P.W.17).

2. The motive for the offence as stated in the F.I.R. Is that there was a civil litigation betweeen one Ghulam Muhammad Muhajir and Dawood a brother of Mahboob appellant, 10/15 days prior to the occurrence Dost Muhammad (deceased) appeared as a witness and gave evidence against the said Dawood, which the accused had seriously resented.

3. According to the prosecution at about 6-30 p.m., on the day of occurrence Muhammad Zaman P.W.1G, who was present in his house, was attracted by an alarm emanating from the house of his brother Dost Muhammad deceased, situate nearby, and went towards his house. In the meantime Khushhal Khan (P.W.13) had also arrived there. They saw Mahboob and Sultan Mahmood, respondents, armed with .12 bore guns, and Muhammad Yaqoob and Ali Asghar respondents, armed with sticks, abusing the deceased and challenging him to come out of the house. As the deceased emerged from his house Mahboob fired at him hitting his left flank. Thereafter, Sultan Mahmood appellant fired at him with his gun. Muhammad Yaqoob and Ali Asghar hurled stones at Khushhal Khan (P.W.13) and Muhammad Zaman (P.W.12), hitting them at different parts of their bodies. Muhammad Dawood son of Feroze Khan (P.W.14) also witnessed the occurrence. The deceased died on the spot.

4. After recording the F.I.R. Malik Sher, S.I. (P.W.17) went to the place of occurrence, took into possession to .12 bore empty cartridges, (P.K./1-2), from the spot in the presence of Muhammad Razzaq (P.W.16) and Muhammad Yunus (P.W.8), and recorded a supplementary statement of Muhammad Zaman (P.W.12), wherein the latter also mentioned Mansabdar as one of the asasilants alongwith the four persons mentioned earlier. The accused were arrested on various, dates. On 16- 5-1973 Mahboob was arrested and a licensed .12 bore gun was recovered from him on 22-5-1973.

Sultan Mahmood accused was arrested on 15-6-1973 and a .12 bore gun (P.3) was recovered from him which contained a spent cartridge in its chamber. Gun (P.1) found from Mahboob matched with the 2 empties (P.K./1-2) found at the spot and Gun (P.3) recovered from Sultan Mahboob matched with the empty found in its chamber.

5. Dr. Rafique Ahmad Ismail (P.W.1) performed the post-mortem examination. On atopsy the dead body of Dost Muhammad was found to have 3 fire-arm inlet wounds with a diamension of 21" x 8".

Out of these Injuries Nos.l and 2 were scorched. In addition there were 18 abrasions on various parts of the dead body.

It may. Be mentioned that Muhammad Zaman (P.W.12) and Khushal Khan (P.W.13) were also found to have sustained abrasions and lacerated wounds. Similarly Mahboob respondent was found to have sustained lacerated wound on his left eye and an abrasion on his chest, while Mansabdar (acquitted co-accused) was found to have a sharp-edged wound (1/2" x 8") deep on his forehead.

It may be mentioned that the same doctor examined Mst. Zuberan Bibi, the daughter of Mansabdar accused and Mst. Gul Begum, the wife of Mansabdar and found that Mst. Zuberan Bibi had one incised wound (1-- ," x 1/16") on her face and an abrasion(1" x -- ") below Injury No.1 while Mst. Gul Begum had four abrasions and lacerated wound on her abdomen, fore-arm and chin caused within about 24 hours.

6. At the trial the prosecution relied on the ocular testimony of Muhammad Zaman (P.W.12) and Khushal Khan (P.W.13) and Muhammad bawood (P.W.14). It also relied on the recovery of fire-arm evidence of motive and the medical evidence.

7. The accused denied their guilt and pleaded innocence but they did not examine any witness.

Mahboob accused stated in his statement under section 342, Cr.P.C., as under:- "My co-accused Mansabdar, his wife and minor daughter were attacked when we were returning on a path and proceeding to our house by the complainant party who were armed with hatchets and sticks. The complainant party including the deceased injured us and we raised alarm.

Supporters of both sides came there resulting in great confusion. During this confusion there was firing injuring Dost Muhammad deceased. Sultan Mahmood, Yaqoob and Ali Asghar were not with us. A false case has been brought against us by the complainant party to conceal their own aggression.

8. The learned trial Court acquitted Mansabdar co-accused altogether and, while acquitting Yaqoob_ and Ali Asghar, co-accused of the charge of murder, convicted them under section 323/34, P.P.C. And sentenced each of them to 6 months' R.I. Each. It, however, convicted Mahboob and Sultan Mahmood under section 302/34, P.P.C. And sentenced each of them to death and a fine of Rs.1,000.

9. The convicted-accused filed an appeal against their conviction and sentences and all of them were acquitted vide the impugned judgment.

Feeling aggrieved Amir Zaman appellant filed a petition for leave to appeal against the acquittal of the four accused-convicts. Leave was, however, granted to him for reappraisal of evidence only with regard to Mahboob and Sultan Mahmood respondents.

10. We have heard the learned counsel for the appellant as well as the learned State counsel and gone through the judgments of the to Courts below and relevant portions of the evidence on the record.

11. We are inclined to agree with the view taken by the High Court while acquitting the respondents, that there were obvious suppressions in the F.I.R.; to of the eye-witnesses were closely related to the deceased while the third witness namely Muhammad Dawood was chance witness. Moreover, their testimony contained material improvements and could, therefore, not be believed; that the fabrication of the evidence of recovery of gun and recovery of crime empties should be ruled out and that the story about the motive was also not convincing.

12. According to the prosecution only to shots had been fired from a distance of about 100 ft. But the autopsy revealed 3 fire-arm wounds of entry on the dead body. Moreover, out of these to had 'scorching' around them, while shows that these shots had been fired from very close range. This wholly falsifies the eye-witness account of the occurrence.

The presence of injuries on the to women of the accused side as well as injuries on the persons of the accused persons namely Mahboob and Mansabdar accused-respondents shows that there was a fight between the parties prior to the occurrence, because these injuries could not have been inflicted if firing had been resorted to by Sultan Mahmood and Mahboob in the very beginning, as alleged by the prosecution. These facts support the plea of defence taken up by Mahboob in his statement made under section 342, Cr.P.C.

We are, therefore, inclined to agree with the High Court that on this state of the evidence on the record it would not be possible to maintain conviction and sentences of the respondents and other co-accused, they were, therefore, rightly acquitted by it.

In this view of the matter we dismiss the appeal, and the respondents are discharged of the bail bonds.