1. MUHAMMAD HALEEM, J.-This appeal by special leave is against the judgment of the Lahore High Court dated 25th of October, 1976, by which the appellant's conviction and sentence was maintained.
2. The appellant, Yasin and Ataul Haq were booked for the murder of Ibadatullah Javed. Ataul Haq was discharged by the inquiry Magistrate while Yasin was acquitted by the learned Sessions Judge, Jhelum, who convicted the appellant under section 302, --. P. C. And sentenced him to life imprisonment and to pay a fine of Rs. 2,000 or in default to undergo rigorous imprisonment for one year by judgment dated 15th November, 1975.
3. According to the prosecution there was an agitation against the Mirzais in the city of Jhelum in July, 1974, as a result of which there was an economic and social boycott. In that agitation the deceased, Ijaz Tariq Mahmood and Shakil Ahmad played the leading role for which reason a day before the incident the appellant and his accomplices namely, Yasin and Ataul Haq had threatened them with dire consequences. On the fateful day that is 2nd of July, 1974, the deceased, Ijaz, Tariq Mahmood and Shakil Ahmad emerged at 8-30 p: m. From Najib Soda Water Factory after taking drinks and proceeded towards the River Road ; and as they neared the house of the appellant in Bagh Mohallah they saw the appellant armed with a revolver and the other two with daggers standing in the Gali who on seeing them raised a cry of Khatam-e-Nubawat Murda Bad on which the deceased raised a counter cry of Khatam-e-Nubawat Zinda Bad. Hearing it the appellant and his accomplices gave a Lalkara that they should be killed for boycotting the Mirzais ; and thereafter the appellant opened fire with his revolver hitting the deceased on his head as a result of which he fell down. Ataul Haq attacked the others with a dagger but they ran towards Masjid Hafiz Noor. They were pursued and the appellant again fired a shot which went astray ; whereafter they took refuge in the mosque. The incident was witnessed by Najibur Rahman and Muhammad Akram.
4. On the basis of a written report of Shakil Ahmad which was handed over to Malik Bashir Ahmad, S. H. O., Police Station City while he was engaged on patrol duty, a case was registered against the appellant and others under section 302 read with section 34, P. P. C. Before the arrival of this Police Officer at the spot the deceased was taken to the Civil Hospital.
5. The appellant and his other two accomplices were arrested on the same night. The appellant produced a revolver from his house which had two crime empties and four live bullets in its chamber which were taken into possession. Yasin produced a dagger which was also taken into possession. Earlier from the spot blood-stained earth was secured. The deceased suffered fire arm injuries with a bullet which was extracted but not sent to the fire-arm expert for verification.
6. It may here be mentioned that on the same night Sabir A.I, A. S. I., alongwith Ashraf and Mubabbat Khan, Constables, were on patrol duty when they noticed an unlawful assembly of persons being incited by one Farooq, a shopkeeper, to kill, loot and burn the properties of Mirzais and consequent upon such incitement the shops were broken open and the merchandize was looted and burnt.
7. Besides, the houses of Mirzais were also set on fire and this disturbance spread over to the other localities of the city. Sabir A.I, accordingly; lodged the report on behalf of the State at 10-25 p.m.
8. And 36 persons were prosecuted for committing. Acts of vandalism. Earlier to this incident two other reports were lodged at the same Police Station on behalf of the State on 1st of June, 1964, in regard to a disturbance and burning of Sethi Cloth House which fire had spread to other adjoining shops.
9. The trial Court accepted the motive as it held that the complainant party were the active members of the movement against Mirzais by reason of their faith and, therefore, Mirzais had retaliated equally to defend their faith and hence the motive of the attack on the deceased and others was probable. As regards the credibility of the ocular testimony furnished by Shakil Ahmad, P. W. 5, Najibur Rabman, P. W. 6, and Tariq Mahmood, P. W. 7, the trial Court held that there was nothing to doubt it as their statements were consistent. Additionally, as Najibur Rahman was the proprietor of Najib Soda Water Factory which was near the spot, the trial Court held that it must have been open at 8-30 p.m. As it was summer and, therefore, his presence must be regarded as natural ; and that further he proved himself to be an independent witness as nothing emerged in his evidence to show that he had also taken part in the agitation. As for Shakil Ahmad and Tariq Mahmood, the trial Court held that they were actively agitating against the Mirzais and hence interested for that reason.
10. The trial Court, on an appraisal of the evidence, concluded that it was after the present incident that serious rioting, arson and loot broke out in the city and one Maqbul Sethi lost his life in one of these incidents, and that there was 'no untoward incident earlier to it. In this connection the trial Court held :- 'The version of the', P. Ws. Corroborated by the S. H. O. Seems to be correct that before the present occurrence and after 1-6-1974, there was only social boycott of Mirzais and there were processions and meetings in the town of Jhelum."
11. As for the written complaint (Exh. P/E) the trial Court after reviewing the evidence of Shakil Ahmad and others reached the conclusion that no reliance can be placed on it at all. In holding so the trial Court observed ". . . The P. Ws. As well as the S. H. O: have been cross---examined to the effect that some body fired at the deceased who was lying injured; he was carried to the hospital in injured condition and none was coming forward to own (Exh. P/E), Shakil Ahmad adopted it and that even the police were insisting as there was large scale rioting and arson in the town at night, and they were not ready to record the F. I. R. On the oral statement, that the version be given in writing. This fact seems to be correct that due to large scale anti-social activities at night in the town the police refrained from recording the F. I. R. On the oral statement and thereby shirked its responsibility and shifted the burden on the complainant to give the version in writing. In what circumstances (Exh. P/E) was written by whom and under whose instructions, according to my assessment, remains nebulous and is not properly explained at the trial. Perhaps the version was recorded by the police when it felt relieved from the extreme burden of the situation prevailing in the town at night or it only asked the complainant to give them (the copies) the names of the accused and the names of the witnesses with signatures on papers and (Exh. P/E) was got prepared later on."
12. Again in regard to the implication of Ataul Haq, the trial Court held :- ". . In view of the nebulous and mysterious nature of the circumstances in which complaint (Exh.
13. P/E) was drafted, I think that the introduction of Ataul Haq was not a straight forward affair and this had to do something with the other murder that took place in the town on the very nigh, for these very reasons I do not take note of the mention of Ataul Haq in the Police papers as the third companion of the two accused and when the witnesses were on oath before the Magistrate they did not say a single word against him."
14. On appeal the High Court held that the motive was established and that the prosecution witnesses could not be regarded as interested as was contended for the reason that if the faith in Khatam-e- Nubawat was the sole criterion then everyone believing in it would be an interested witness which on the face of it was preposterous.
15. The High Court further agreed with the trial Court in holding that the complaint (Exh. P/E) "came into existence during the, course of investigation and not earlier as stated by the P. Ws.".
16. Accordingly, in the ultimate analysis it agreed with the opinion of the trial Court as to the assessm ent of the ocular testimony and upheld the conviction.
17. Leave to appeal was granted to consider whether the conviction of the appellant was consistent with the safe dispensation of justice.
18. There is no manner of doubt that after the Rabwa incident on 29th of May, 1974, there was agitation in Jhelum City which took the shape of economic and social boycott ; and as the police reports (F.I.
19. Rs.) dated 1st of June, 1974, disclosed, unlawful processions and meetings were held and persons were incited to commit arson, loot and murders of Mirzais as a result of which Sethi Cloth House was set on fire which spread over to other adjoining shops. There is also an F. I. R. Lodged by Sabir A.I, A. S. I., at 10-25 p.m. On the night of the present incident in which he has charged one Muhammad Farooq to have incited an assembly of Muslims to commit vandalism against the Mirzais and pursuant thereto large scale rioting took place in the city of Jhelum in which houses, shops and merchandise were burnt. Such conclusion was also reached by the Courts below on a review of the evidence. We have also from the evidence of Tariq Mahmood, P. W. 7, that one Maqbul Sethi lost his life that night. In this back ground the counsel for the appellant challenged the conclusion of the Courts below that it was present incident which had triggered the rioting that night. Accordingly, the moot question for consideration is whether the Courts below are correct in holding so.
20. The High Court has held that the complaint (Exh. P/E) came into being during the investigation of the case which was taken in hand during the continuance of the riots ; and, therefore, the High Court was not justified to conclude, as it did, the time at which the deceased was killed.
21. Having examined the evidence of Shakil Ahmad we are not impressed with it. As stated by him the incident occurred at 8-30 p.m. And if this was so, then we fail to see as to why he waited for an hour at the spot just for the sake of getting a statement recorded when he could have proceeded to the police station which was three furlongs away. Not having done so the delay creates a doubt in regard to the time of occurrence.
22. Again if the deceased had died at the spot where was the occasion to remove him on a cot to the hospital. According to Shakil Ahmad he had come to the spot immediately after coming out from the mosque where he had stayed for about an hour yet in his statement he had not said anything about the deceased having been removed to the hospital. If at all he was dead then there was no occasion for his removal to the hospital before the arrival of the S. H. O. But that does not seem to be the case for he must have been alive and, therefore, his brothers Mumtaz and Khadam had taken him to the hospital to provide treatment. Obviously this goes to show that he was not alive to the true facts.
23. The trial Court has held the implication of Ataul Haq to have been made not in a straightforward manner. The name of Ataul Haq was mentioned in his statement and in the statements of the other two witnesses recorded by the Police but at the trial their consistent version was that the third assailant was an unknown person. Such contradictions have been proved. This feature was noticed by the trial Court but it did not give due weight to it which feature, in our view, seriously affects the credibility of these witnesses.
24. Since the Courts below have excluded the complaint from consideration it seems to us that the version given by the prosecution witnesses is highly doubtful for it was likely that a case was made out against the appellant and the others in the course of the investigation. Even as to the version given by these witnesses the Courts below have not believed the participation of Yasin and have held that Ataul Haq was falsely implicated. There is also deliberate suppression of the rioting that took place in the city that night for the reason that they wanted to single out the present incident.
25. Accordingly, it is not possible to accept the conclusion of the Courts below that it was this incident which triggered the large scale rioting in the city. Therefore, to rely on the ocular testimony as was done by the Courts below in the background of the facts and circumstances of the case was a shaky conclusion in the absence of any credible corroboration as to the participation of the appellant, It seems to us that in the background of a large scale rioting the possibility on an attack on the solitary house of the appellant and the consequent firing at the deceased by someone cannot be excluded. Accordingly, the evidence does not establish beyond reasonable doubt the guilt of the appellant.
26. By a short order we had announced our conclusion accepting the appeal and setting the appellant at liberty if not required in any other case. The above are the reasons for it.