YAQUB SHAH vs THE STATE

' MUHAMMAD RAFIQ TARAR, J.---This appeal by Yaqub Shah with the leave of this Court, is directed against the judgment of a learned Division Bench of the Lahore High Court dated 2-5-1990 whereby his appeal challenging his conviction under section 302/149, P.P.C. Was dismissed and his sentence of imprisonment for life was maintained. It was to be heard alongwith Criminal Appeal No,97 of 1991 filed by other three convicts namely Maqsood Shah, Beharm Shah and Muslim Shah but unfortunately it was not put by the office alongwith the said appeal judgment wherein was pronounced on 17-9-1992 acquitting the aforesaid three convicts.

2. The prosecution version was that or, 12-5-1985 at 5-30 a.m. Sajjad Hussain Shah and Arshad Hussain Shah brothers of Azhar Hussain complainant went out to ease themselves. Sajjad Hussain was having his licensed 7MM rifle and revolver with him. When they reached near the house of Fir Bakhsh Tarkhan the accused Arsons namely Maqsood Hussain Shah armed with sten gun, Nazir Shah-, Mazhar Shah, Jalal Shah, Asghar Shah, Inayat Shah and Manzoor Shah armed with 7MM rifles confronted them. Maqsood Shah raised a Lalkara that Sajjad Hussain Shah and Arshad Hussain should not be allowed to go alive and simultaneously fired his sten gun hitting Arshad Hussain. The other accused named above fired their rifles at him and he fell to the ground. On the other sidle accused Muslim Hussain Shah armed with sten gun, Behram Shah, Akram Shah armed with 7MM rifles Mehmood Shah and Yaqub Shah appellant herein armed with .12 bore guns were present. Maqsood Shah raised a Lalkara on which Muslim Shah fired his sten gun at Sajjad Shah hitting his right thigh. He turned back upon which Mehmood Shah fired his gun at him and in the meant the Seda Hussain Shah armed with 7MM rifle, Abdullah armed with .303 rifle Fazal Shah, Arshad Shah armed with 7MM rifles alongwith Safdar Hussain Sirah, Inayat Shah and Mazhar Hussain Shah also came there. Abdullah Shah and Behram Shah fired their rifles at Sajjad Shah hitting his chest. Then all the accused fired at Sajjad Shah and Arshad Hussain when they were lying on the ground. Both of them expired at 'the spot. The accused persons left the spot taking the licensed 7MM rifle and revolver of Sajjad Shah deceased alongwith them. Besides the complainant the occurrence was witnessed by his mother Mst. Zainab Bibi, Yousaf P.W.7, Nazir Hussain Shah P.W.9 Walayat Shah and Altaf Shah (not produced).

' Motive alleged by the prosecution was that two years prior to the occurrence one Yaqub Shah brother of Maqsood Shah accused was murdered for which Sajjad Shah and Arshad Hussain deceased alongwith others were challaned. The case was pending and both the deceased persons were on bail.

3. During the investigation Yaqub Shah appellant herein allegedly led to the recovery of a .12 bore gun from his house. Out of three .12 bore crime empties recovered from the spot one had allegedly matched with the said gun. After the usual investigation the appellant and his nineteen co- accused were sent up to face their trial.

4. The prosecution examined as many fourteen witnesses at the trial and its mainstay was the testimony of Yousaf P.W.7, Azhar Hussain complainant P.W.8 and Nazir Hussain P.W.9 who furnished ocular account of the occurrence. The prosecution also relied on the report of the Fire-Arm Expert Exh.P.Z/B against the appellant according to which a 12 bore crime empty was found wedded with .12 bore gun P.13 allegedly recovered from him.

5. After examining the evidence on the record the learned trial Judge convicted the appellant and his co-accused Maqsood Shah, Behram Shah, Mazhar Shah and Muslim Shah. The remaining 15 accused were acquitted of all the charges. On appeal Mazhar Shah was also acquitted by the High Court but the appeal of the appellant, Maqsood Shah, Behram Shah and Muslim Shah was dismissed. Maqsood Shah, Behram Shah and Muslim Shah challenged their conviction and sentences in this Court. Their appeal viz. Criminal Appeal No,97 of 1991 was allowed and they were acquitted of the charges.

6. Learned counsel for the appellant contends that the reasons recorded by this Court in support of the finding of acquittal and all the observations made in that regard are also attracted to the case of the appellant, therefore, he is also entitled to acquittal. The learned counsel for the State is not in a position to controvert this contention. In para. 6 of our judgment we have observed that the finding of the trial Court that Yousaf Shah and Azhar Shah were independent witnesses, was perverse because it was prosecution's own case and an admitted fact that two years prior to the occurrence Yaqub Shah brother of Maqsood Shah was murdered for which both the deceased persons were challaned. The said case was pending when this occurrence took place. Azhar Shah complainant was the real brother of both the deceased and Yousaf was real nephew of Zainab Bibi mother of the deceased persons. It was further observed that trial Court had not given any reason for believing the presence of the eye-witnesses namely Yousaf Shah, Azhar Shah and Nazir Hussain at the spot at that hour of the morning. All of them had failed to give any reasonable explanation for their presence at the spot and furthermore if they had been present at the spot the accused who were twenty in number armed with fire-arms would not have spared them. Azhar Shah and Yousaf Shah as already stated above were closely related to the deceased persons and so was Nazir Hussain. He was also an accused in the murder case of Yaqub Shah brother of Maqsood Shah accused. His brother Shabbir was also accused in the said case. The case of the appellant is not distinguishable from that of the co-convicts who were acquitted by this Court The reasons recorded in our judgment in Criminal Appeal No,97 of 1991 also cover the case of the appellant.

7. In the earlier judgment we had also not relied on the evidence relating to recoveries. The crime empties allegedly recovered from the spot on 12-5-1985 were sent to the Forensic Science Laboratory on 22-5-1985 i,e. Two days after the arrest of the accused persons. The fire-arms (including gun P.13) were allegedly recovered on 31-5-1985 and were sent to Forensic Science Laboratory on 13-6-1985. The date of depositing the weapons in the Malkhana was found missing in the statement of S.H.O. And concerned Head Constable. The report of the Fire-Arm Expert was, therefore, of no avail to the prosecution. It may also be mentioned that one crime empty recovered from the spot was found fired from .12 bore gun of Mazhar Hussain but he was acquitted by the High Court.

For the foregoing reasons we allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.