Appellant Niamat Ali aged 50 years, son of Nathu, resident of Cha No. 108 G.B., Police Station, Jatanwala, was tried and convicted by the Sessions Judge, Faisalabad vide judgment dated 9-7- 1978, for the murder Allah Dad, his co-villager and for murderous assault on the decease brother Muhammad Yusuf. He has been -sentenced to life imprisonment a fine of Rs; 2,000 or in default further rigorous imprisonment for six mob under section 302, P. P. C. And two years' rigorous imprisonment under section 307, P. P. C. The amount of fine, if realised was to be paid to the le' heirs of the deceased,
2. He has appealed.
3. The occurrence allegedly took place on 9-12-1975 at 8-00 p.m outside village abadi of Chak 108 G.B. Situate at a distance of 11 miles fro Police Station. Jaranwala. The matter was reported to the police Muhammad Yusuf on the same evening at 8-50 p.m. On his statement F.I. R. Exh. P. L. Was recorded by. Muhammad Abdullah A. S. I. (P. W. 11) The case was initially registered under section 307, P. P. C. But as deceased Allah Dad succumbed to the injuries at 6-30 a.m. In Civil Hospital, Jaranwala, the offence was altered to one' under section 302, P. P. C. The case was investigated by two Police Officers, i.e. Masood Ahmad S. (p. W. 10) and Muhammad Abdullah, A. S. I. (P. W. 11).
4. Muhammad Abdullah, A, S. I. (P. W. 11) after recording the first information report visited the hospital. The deceased was not found fit to make a statement. He visited the spot on the same night at 11-00 p.m. He made arrangement for guarding the place of occurrence. He then visited the spot on the following morning and collected blood-stained earth and', made into a sealed parcel vide memo. Exh. P. G. On receiving information that the deceased had expired, he returned to the hospital. He held inquest into the death of the deceased, prepared report Exh. P. O. And injury statement Exh. P. Q. In respect of the deceased. Muhammad Yusuf (P. W. 8) produced before him inter alia Tin P. 7 which was taken into posses--sion vide memo Exh. P. K. He got site plan Exh. P. H.
Prepared by Ghaus Muhammad Patwari (P. W. 5) Barkat Ali, an uncle of the appellant was also injured the same evening. He was medically examined at 9-15 p.m. Re--submitted application Exh.
P D/2 to the Medical Officer for iris opinion about the injury sustained by Barkat Ali. The counter version put by the I accused party that Barkat Ali sustained injuries at the hands of some, robbers teas found to be incorrect.
Masood Ahmad S. I. (P. W. 10) visited the spot on 12-12-1975. Iftikhar Ahmad (not examined) produced before him one empty P. 8 which he took into possession vide memo Exh. P. M. At the instance of Rashid (not examined) a suit-case P. 9 was taken into possession vide memo Exh. P. N.
He arrested the appellant on 13-12-1975. Final report was also submitted by this P. W.
5. Dr. Mumtaz Ahmad (P. W. 1) examined the deceased on 9-12-1975 at 8-40 p.m. When he was alive (time of examination given on medico legal report Exh. P. A. Is 9-30 p.m.)
On 10-12-1975 at 12-30 p.m. Dr. Ahmad Saeed (P. W. 2) conducted the post-mortem examination on the dead body of the deceased. He found a fire-arm wound of entry 2 --" X 2" on front inner part of left thigh. The thigh bone was broken underneath. There were two wounds of exit each measuring - -" x --" apart on back of left thigh; a fire-arm wound of entry --" x 3/8" on left thigh half an inch below injury No. 1. The femoral vessels were crushed corresponding to injury No.1. Injury No. I was fatal while injury No. 2 was simple. Both the injuries were caused with fire-arm. One piece of cardboard and four pellets were removed from the thigh. Death in his opinion was due to haemorrhage and shock as a result of injury No. I which was individually, sufficient to cause death in the ordinary course of nature. The time between injuries and death was within 12 hours and between death and post-mortem examination about six hours.
On the same evening at 9-15 p.m. Dr. Mumtaz Ahmed (P. W. 1.) also examined Barkat Ali. He was found to have sustained a fire-arm grazing wound 2' x 1" into muscle deep on the upper part of left thigh with abrasion --" x --" on left scrotum with a corresponding hole on his chaddar. The injury was simple, caused wish fire-arm. On inquiry by the police as regards the nature of the injury, he opined (vide Exh. P. D./3) that possibility of the injury being self-suffered could not be ruled out.
6. The appellant when examined at the trial pleaded innocence and stated that he has been involved due to enmity. He gave a counter version and relied on certain documents in his defence.
He has taken up the position stating that:- "I have got only one house of Awan biradari in this village. Jats are in majority and they wanted to get hold of the depot allotted to me. I never have any altercation with Allah Dad deceased. I did not take any quota of sugar for the month of December. I hereby produce a certificate from the Food Department Exh. D. D. Prosecution got it wrongly stated from the doctor that Allah Dad was got examined at 8-40 p.m. I have already taken certified copy of the medico-legal certificate, of Allah Dad from the High Court prepared from the original on 13-11-1976 which shows that he was examined at 9-30 p.m. I produce certified copy Exh. D. E. In fact a few robbers had com--mitted robbery in the darkness of evening on the day of occurrence upon the person coming down from the bus while on their way to Chak No. 108 G. B. Allah Dad was injured on that way and my uncle Barkat Ali was also injured near the School. A Magistrate un his way from Lyallpur to Jaranwala informed Abdullah A. S. I. At Awagat. He was influenced by the complainant party and deliberately avoided to make a report on behalf of Barkat Ali in spite of his medical examination. Barkat Ali got a case registered through the Writ in the High Court. I produce the certified copy of the High Court order dated 3-5-1976 which is Exh. D. F. The A. S. I. Kept both the parties for a bargain and having settled the matter with the complainant party prepared this version. I produce the certified copy of the original F. I. R. Produced before the High Court which contains the words that he went to the spot. This copy is Exh. D. G. Yousaf P. W. Bore a grudge against my family as my uncle Barkat Ali had appeared as a P. W. Against him in a case registered on F. I. R. No, 335 dated 7-9-1975, under section 326/149, P. P. C. The copy of this F. I. R. Is Exh. D. H. I was actually arrested on 12-12-1975 which has been wrongly stated as 13-12-1975. 1 draw the attention of the Court to the remand application of S. I. Masood Ahmad dated 13-12-1975, at page 15 of nathi B of the challan sub--mitted by the prosecution in Court."
7. The prosecution at the trial relied on ocular testimony given by Muhammad Yusuf (P. W. 8), a brother of the deceased and Nazir Ahmad (P. W. 9); the recovery of empty P. 8 and Tin P. 7; the motive and finally the medical evidence.
8. The prosecution case as given in the first information report and stated by the two witnesses of the spot can briefly be summarised thus Two days before the occurrence the deceased had gone to the Depot of the appellant to get sugar, at which an altercation took place between the deceased and the appellant, they had also exchanged abuses. The appellant had threatened the deceased that he would take revenge of this insult. From reprisal to this the deceased was attacked by the appellant when on the night of occurrence he (deceased) in the company of his brother Muhammad Yusuf P., W. Was returning to the village at about 8-00 0.m. After selling milk, the latter had an empty milk Tin in his hands. They were at a short distance from the village in Killa No. 3 of Square No. 68 when appellant Niamat Ali who was hiding in a cotton field in Killa No. 20 of Square No. 68, stood up and surprised them. He (appellant) had a 12 bore gun. He shouted that he would teach them a lesson for the abuses.
Simultaneously he fired at the deceased which hit him on the left thigh. He fired a second shot which again hit on the left thigh. The deceased fell down. He fired a third shot at Muhammad Yusuf P. W. But it fell on the milk Tin making a hole in it. On the alarm raised by the. Deceased and Muhammad Yusuf P. W. Nazir Ahmed P. W. And Sher Muhammad son of Shamas Din (not examined) came there. They witnessed the occurrence and even attempted to apprehend the appellant but he succeeded in escaping away.
9. The defence at the trial had suggested a different version. Accord--ing to the defence, some unknown robbers waylaid the passengers alighting from the Bus near Sain Di Khoi. They had resorted to firing. Barkat Ali, an uncle of the appellant and the deceased were injured by that firing.
They had deprived one Faqir Shah of his attache-case which was later recover--ed from one Rashid Ahmed and taken into possession by Masood Ahmad, S. H. O. (P. W. 10). This was identified by Syed Faqir Shah P. W. To be his own. Rao Tehsin Ahmed, Magistrate Jaranwala passed by the place of robbery and had informed the police near Adda Awagat to go to the spot and register a case. This finds mention in the Zimnis recorded by Muhammad Abdullah, A. S. I. He was called upon to refresh his memory which he did and pointed out thus "This evening I along with subordinates was present near Adda Awagat on patrol duty. At about 8- 10 p.m. Rao Tehsin Ahmad, Magistrate Jaranwala reached there in his car on way from Lyallpur to Jaranwala. He called me and said that was informed that a few unknown culprits have robbed a bus near Adda Sain Di Khoyee. He directed me to verify the fact and take necessary action."
The case regarding this robbery was not registered by the police and it was only on the direction of this Court that a case had, ultimately, been registered. However subsequently it stood cancelled on account of lack of proof.
11. The learned trial Judge did not accept the motive setup by the prosecution. He, however, relied on the ocular testimony supplied by the two prosecution witnesses. Considering the evidence of Nazir Ahmad P. W. He concluded :- "The statement of this witness has been criticised on the ground that he is a man with blemished history arid he was inimically disposed towards the accused and his relatives so it was not safe to rely upon him. It is true that this witness was involved in the case of murder of his sister-in-law but was acquitted. About five years ago he was also involved in a theft case of a buffalo. It was also suggested, but the suggestion was denied, that three or four months prior to the occurrence a theft was committed in the house of Niamat Ali accused and this witness was summoned by the police as a suspect. Of course this fact could cause doubt on his integrity; and detract from his veracity.
From the suggestion put to the witness it appears that a case of theft was registered at the instance of Niamat Ali accused. The proper course open to the defence was to have obtained a copy of the F. I. R. And produce in this Court. Where a fact is reduced into writing, the best evidence is the writing itself. Obviously I do not find any reason as to why this witness should falsely implicate an innocent person."
12. I have heard the learned counsel for the parties and have gone through the recorded with their help.
13. Two fundamental points arise in this case. Firstly, if the prosecu--tion has been able to establish the involvement of the appellant beyond reasonable doubt, and, secondly if the counter version suggested by the defence is reasonably plausible so as to cast doubt on the prosecution case.
14. Prosecution has examined two witnesses to depose about the actual occurrence. Muhammad Yusuf (P. W. 8) is a brother of the deceases while Nazir Ahmed (P. W. 9) is married in Chak No. 108, G.
B. According to Muhammad Yusuf P. W. The appellant said before attacking the deceased that he would teach him a lesson for the abuses. (Reference obviously was to the incident which took place a few days before when the deceased had gone to the Depot of the appellant for buying sugar. The distance between him and the appellant was 1-- yards when the latter fired at him. He did not state in his police statement that deceased had told him about the earlier incident. He did not hand over Tin (P. 7) with a hole in it at the earliest occasion during the investigation. He did 'not state in his police statement that the deceased had told him and Nazir Ahmad P. W. That he had identified the appellant. He rejected the suggestion as concoction that on the night of occurrence, the deceased, Muhammad Ali Javed and one Faqir Muhammad had alighted from a bus when they were waylaid by robbers. The robbers snatched the suit-case of Faqir Muhammad and also resorted to firing injuring the deceased. He has admitted the recovery of the suit-case but has taken up the position that the same was planted one with a view to spoil the prosecution case. He denied that some passengers of the other bus including Barkat Ali, an uncle of the deceased, were also fired at and that Barkat Ali was injured. He denied to have the knowledge if a counter case on these facts was registered under orders of this Court. Nazeer Ahmad P. W. Stately, had come to reside in Chak No. 108 G. B. With his in-laws, two and a half years before. He was resident of Chak No. 112, G. B. He was going to Chak No. 112 G. B. As his mother was ill. He had received information about it. He heard two gun reports coming from the side of route he was following. As he proceeded further he saw, the deceased lying on the ground and appellant standing by his side with a gun in his hand: The deceased was entreating the appellant not to harm him. Muhammad Yousuf P. W. Was also present there and he too, was entreating the .Appellant. Appellant fired at Mohammad Yousaf P. W. Within his sight. The bullet hit the milk tin. Deceased had told them that he had identified the appellant. He denied the suggestion that a few months before he was suspected regarding a theft in the house. Of the appellant and was interrogated by the C. I. A. Staff. He admitted that he was involved in the murder case of his sister-in-law. He has also admitted that he was involved in the theft of a buffalo. It will, therefore, be seen that this evidence is not confidence inspiring. One of them is a brother of the deceased; the other is a chance witness. If he was involved in a murder case, no matter he was acquitted, of his sister-in-law, his presence in the house of his in-laws was somewhat unusual. Above all the explanation about his presence at the spot is not very convincing. A counter version, equally plausible is being suggested. Muhammad Yousaf P. W. Is found to have improved over his earlier statement made before the police regarding the first incident. The motive set up besides being very trivial, has not fully been established. Dr. Mumtaz Ahmad stated that it was possible that both the injuries on the person of the deceased were caused by a single shot. It is rather more probable that both the injuries were the result of a single shot. Both are located on the thigh within a distance of half an inch between them. Bone under injury No. 1 was found fractured. If this was the first in the sequence, the deceased could no more keep standing so as to receive the second shot in the. Same area. And if injury No. 2 was the first to be received even then the same injury could not be received in the same area as the deceased, expectedly, must have moved aside. It will be seen that the appellant is said to be holding a 12 bore gun. There is thus, conflict in the medical and the ocular evidence. For all these reasons it would be difficult to accept ocular evidence without reservation.
15. There are two main recoveries in the case. Tin P. J. With a hole in it, was produced by Muhammad Yousaf P. W. As already noticed, This was not produced at the earliest occasion during investigation. Empty P. 8 was produced by one Iftikhar Ahmad Ghulam Ahmad was the other recovery witness. Both have not been examined. This recovery in the absence of the recovery of the gun is of little use to the prosecution. Prosecution case, therefore, on the whole is doubtful.
16. This brings me to the counter version of the defence i.e. That some robbers had waylaid the passengers alighting from the buses; they resorted to firing injuring the deceased and Barkat Ali, an uncle of the appellant. There are number of circumstances tending to show its plausibility. Rao Tehsin Ahmad Magistrate Jaranwala passed that way and was informed that a bus had been robbed near Adda Sain De Khohi. He directed Muhammad Abdullah A. S. I. Who was present at Adda Awagat, to go to the spot and verify the fact. At the trial he (Muhammad Abdullah A. S. I.) wanted to convey that he recorded the F. I. R. In this case at the police station at 8-30 p.m. On the statement of Muhammad Yousaf P. W. Who had produced before him medico-legal report of the deceased. However during cross-examination when he was asked to refresh his memory regarding the first zimini in the case, he carne out with an explanation that he verified the fact at the spot and. Found it incorrect. He claims to have prepared the F. I. R. At 8-50 p.m. Report Exh. P. A.
Was examined in Court by the trial Judge. The time given was 9-30 p.m. Portion bearing figure `9' was found torn. The some of arrival of Barkat Ali, the other injured person, in the hospital according to Exh. P. D. Is 9-15 p.m. He did not record his statement, notwithstanding that he had admittedly visited the hospital at 9.30 p.m. When he hats gone there to find out if the deceased was fit to make a statement. He has taken up the position that Barkat Ali did not appear before him to make any statement. It appears, however, that police was avoiding to register a case on the counter version.
It will be seen that, at long last, F. I. R. On. The counter version was lodged under the direction of this Court. Case was partly investigated by Masood Ahmad S. I. (P. W. 10). According to him suit-case P.
9 was identified by Faqir Muhammad. He admits that the fact came to his knowledge that the suit- case was snatched from Faqir Muhammad by the dacoits. Faqir Muhammad has not been examined. The Court is entitled to draw an inference adverse to the prosecution. This officer, allegedly learnt about the counter version on 12-12-1974. He believed the disclosure made to him that Barkat Ali had self-suffered injuries on his person. He did not have him re-examined. It appears that the police was not at all concerned about the counter version and conducted investigation directed towards only one hypothesis. I am there--fore, of the firm view that the and I am inclined to hold that the counter version in the case is reasonably plausible so as to cast serious doubt on the prosecution story.
17. For all that has been stated above, I accept this appeal, set aside the conviction and sentences recorded against the appellant and acquit him. He shall be released forthwith if not required to be detained in any other case.