' MUHAMMAD FARRUKH MAHMUD, J.--- The appellants Khalil alias Nanna and Yamin, along with Muhammad Ramzan, Abdul Rahim, Khalid, Muhammad Abdullah and Rehmat Ullah, were tried by the learned Additional Sessions Judge, Gujranwala, in case F.I.R. No,75 registered at Police Station Ladhewala Waraich on 30-4-1996, for offences under sections 302/324/148/149, P.P.C. Vide judgment, dated 17-9-2001, the learned trial Court, while acquitting Muhammad Ramzan, Abdullah, Abdul Rahim and Khalid, convicted the appellants for offence under section 302, P.P.C. And sentenced them to death each plus payment of Rs,50,000 each as fine which, in event of recovery, was to be paid to the legal heirs of Mushtaq deceased. In case of non-payment of fine, the convicts/appellants were to undergo S.I. For six months each. Rehmat Ullah, accused, after recording of his statement under section 342, Cr.P.C. When the case was fixed for final arguments, absented himself and was, as such, declared proclaimed offender and perpetual warrants for his arrest were issued against him. So no verdict/sentence was announced against him. He is still absconder.
2. Khalil alias Nanna and Yamin, convicts/appellants, have challenged their conviction and sentence by filing the instant appeal. Murder Reference No,667 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellants has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the prosecution per F.I.R. Exh.P.F. Recorded by Tahir Majeed Khan, S.-I./P.W.10, at the instance of Fakhar-ud-Din, complainant/P.W.3, are that on 30-4-1996 at about 3-30 p.m., the complainant, his son Khalil Ahmad and nephew Muhammad Mushtaq were talking with each other in front of the house of Gulzar Ahmad, when all of a sudden Muhammad Ramzan armed with Chhuri, Abdul Rahim armed with .7 mm rifle, Rahmat Ullah armed with .12 bore gun, Khalil alias Nanna armed with .12 bore gun, Khalid Mahmood armed with .7 mm rifle, Abdullah armed with .30 bore pistol and Muhammad Ramzan armed with .12 bore gun emerged there. Muhammad Ramzan raised Lalkara that they be killed, whereupon Rahmat Ullah fired from his gun which hit Muhammad Mushtaq on his right cheek. Khalil alias Nanna fired from his gun, hitting Muhammad Mushtaq on his left temporal region. The fire shot by Yamin hit Muhammad Mushtaq on his chest, in view whereof Muhammad Mushtaq fell on the ground. Then all the accused fired from their respective weapons hitting Muhammad Mushtaq on different parts of his body. Abdul Rahim, Khalid Mahmood and Abdullah shot straight fires from their respective weapons on the complainant and the P. Ws. Who narrow escaped by hiding themselves. On hue and cry raised by the P.Ws. And on arrival of the inhabitants of the village, the accused made good their escape while firing with their respective weapons. Besides the complainant, the occurrence was also witnessed by Abdul Rasheed and Murtaza/P.W.4. Muhammad Mushtaq, while in injured condition on his way to Civil Hospital, Gujranwala, succumbed to the injuries.
' As to the motive, it was alleged that one day prior to the occurrence before Eid prayer, during discussion over giving and taking of interest on loan, Muhammad Mushtaq deceased gave a slap to Muhammad. Ramzan. However, the matter was patched in the mosque, due to intervention of the villagers but Muhammad Ramzan kept a grudge in his heart, so he along with his companions committed the murder of the deceased.
4. The complainant, while leaving Nisar Ahmad/P.W.2 and Abdul Jabbar/P.W.1 to guard the dead body of the deceased in the Civil hospital, Gujranwala, himself went to the police station and reported the matter to Tahir Majeed Khan, Inspector/P.W.10. After registration of the case, the Inspector/Investigating Officer (I.0.) went to Civil Hospital, Gujranwala; prepared injury statement Exh.P.J. And inquest report Exh. P. K. Of the deceased and got post-mortem examination on the dead body of the deceased then the Investigating officer went to the spot; prepared its rough site plan Exh.P.M.; collected blood-stained earth and sealed the same into parcel vide memo. Exh.P.N.
On 6-5-1996, he got prepared site plan of the place of occurrence Exh.P.G. From Maqsood Ahmad Bhatti, Draftsman/P.W.5. All the accused were arrested on 14-5-1996. On 22-5-1996 Rahmat Ullah, accused/ absconder, while in custody, led to the recovery of .12 bore gun which was taken into possession vide memo. Exh.P.A. On the same date, Muhanunad Yamin/appellant, while in custody, led to the recovery of .12 bore gun which was taken into possession through memo. Exh.P.C. On the same day, Khalil/appellant, while in custody, led to the recovery of .32 bore revolver, which was taken into possession vide memo. Exh.P.B. After completion of investigation, the accused were sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced ten witnesses. Ocular account was furnished by Fakhar-ud-Din, complainant/P.W.3, and Ghulam Murtaza/P.W.4. They also stated about the motive. Abdul Jabbar/P.W.1 stated about the recoveries of weapons effected at the instance of the accused. Dr. Shabbir Hussain/P.W.8, who conducted post-mortem examination on the dead body of Muhammad Mushtaq deceased on 1-5-1996 at 11-50 a.m., while observing eight injuries on the person of the deceased, opined that all the injuries were collectively and particularly injury to chest causing damage to left lung and pleura were the cause of death. According to him, the duration between injuries and death was 1 to 3 hours, while it was 20 to 24 hours between death and post-mortem examination. Tahir Majeed Khan, Inspector/P.W.10, stated about the registration of the case at the instance of the complainant and the investigation thereafter.
6. In their statements recorded under section 342, Cr.P.C. All the accused including the appellants, pleaded their innocence and false implication. Rahmat Ullah took specific plea of defence of his life, the life of his injured sister and the lives of other inmates of the house, in the following words:-- "I am innocent. The whole story narrated in the F.I.R. Is concocted one. On the fateful day at the time of occurrence I was captured by Idrees and some other persons belonging to the complainant party but I got released myself and went to my house where Mushtaq deceased, Shera, Khalil, Khalid and Idrees persons of the complainant party armed with fire-arm weapons came and fired at my house. My sister Mst. Abida Bibi who was present in the courtyard of my house received fire- arm injuries by indiscriminate firing by the above said persons. Some bullets. Hit on the front wall of the room of my house. Due to firing of said persons I felt that they would kill me and other inmates of my house. So I picked up .12 bore licensed gun of my brother from the room of my house and fired towards above mentioned persons to save my life, the life of my injured sister and other inmates of my house in the air to threaten the assailants and one shot hit on the deceased Mushtaq, in consequence of which he died subsequently. I along with my injured sister came in the R.H.C. Qila Didar Singh from where due to the seriousness I got referred chit OPD No,7795 and reached DHQ Hospital, Gujranwala where I got admitted my injured sister. While I was consulting with the doctor about my injuries, the complainant along with injured Mushtaq came in the hospital. Immediately, the police came there and arrested me without my examination. I narrated above mentioned facts to the Investigating Officer Tahir Majeed but he with the connivance of the complainant party involved me and my co-accused in this case falsely. The. F.I.R. Was lodged with the delay by giving the Roznamcha stopped. As the police papers were not available on 30-4-1996 so the postmortem examination of the deceased was not conducted on the same day and was conducted on the following day. Inspite of the fact that Mst. Abida Bibi was injured during the occurrence and she was rather admitted in the same hospital where the dead body of the deceased was lying, the Investigating. Officer did not join her in the investigation of the case. The Investigating Officer also did not show the marks of firing which were present on the wall of a room of my house. Even he did not investigate the matter according to my version with mala fide. He did not join the person of the complainant, party who fired at our house at the time of occurrence. The complainant party was the aggressor. I made firing in my self-defence to save my life, the life of my sister and other inmates of my house. So I have not committed 'any offence. My co-accused were not present at the time of occurrence and they did not witness the occurrence. P. Ws. Are related with the deceased and are partisan. The investigation of this case is based on mala fide."
' He also tendered in evidence attested copy of MLR of his sister Mst. Abida Bibi as Exh.D.A.
Muhammad Khalil and Yamin, accused/ appellants, while adopting the statement of Rahmat Ullah/accused, added that they were not present at the time of occurrence. Muhammad Khalil appellant produced photo copy of licence of his .7 mm rifle as Exh.D.D. However, none of the accused appeared as his own witness under section 340(2), Cr.P.C., nor did they produce any witness in defence.
7. Learned counsel for the appellants submit that the P.Ws. Were related to the deceased; that they gave an exaggerated version of the occurrence; that the defence plea put forward by Rahmat Ullah/accused and adopted by rest of the appellants was more plausible; that the P.Ws. Made dishonest improvements during the trial; that the presence of P.W.4 at the time of occurrence was doubtful; that the motive as set in the F.I.R.
Could not be proved during trial; that the witnesses made dishonest improvements about the motive as well; that no independent witness about the motive was produced during trial; and that the prosecution case was not free from doubt.
8. Conversely, the learned counsel appearing on behalf of the State submit that it was a daylight occurrence; that Mst. Abida Bibi was not produced during trial; that her medico-legal report was not judicially proved; that specific role has been attributed to the appellants; that corroboration can be sought from the statement of Rahmat Ullah/ accused. They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. It is a case of two versions; one put forward by the prosecution and the other by Rahmat Ullah/accused in his statement recorded under section 342, Cr.P.C. Which was adopted by the rest of the accused. Rahmat Ullah had taken specific plea of self-defence of his life, the life of his injured sister and other inmates of the house. The defence plea has been reproduced in para.6 ante. Both the versions are to be put in juxtaposition in order to ascertain as to which of the two is true or nearer to the truth. The prosecution case revolves around the statements of Fakhar-ud-Din, complainant/ P .W.3, uncle of the deceased, and Ghulam Murtaza/P.W.4, son of the deceased. The rest of the eye-witnesses were not produced. According to F.I.R., on the fateful day at 3-30 p.m. The complainant, his son Khalil Ahmad and his nephew Mushtaq deceased were gossiping in front of the house of Gulzar Ahmad when they were confronted by Muhammad Ramzan armed with Chhuri, Abdul Rahim armed with .7 mm rifle, Rahmat Ullah armed with .12 bore gun, Khalil alias Nanna armed with .12 bore gun, Khalid, armed with .7 mm rifle, Abdullah armed with .30 bore pistol and Yamin armed with .12 bore gun. Ramzan raised Lalkara. Thereafter, Rahmat Ullah, accused/ absconder, caused a fire with his gun which hit Muhammad Mushtaq on the right cheek. He was followed by Khalil appellant whose fire caused by .12 bore gun hit on the forehead of Mushtaq deceased. Yamin also caused fire with his .12 bore gun which hit on the chest of Muhammad Mushtaq. After receipt of fires, Mushtaq fell on the ground. Thereafter, all the accused with their respective weapons fired at Mushtaq causing injuries on different parts of his body. Abdul Rahim, Khalid Mahmood and Abdullah accused caused fires at the P.Ws. Who succeeded in saving their lives. Then the accused left the scene of occurrence. Muhammad Mushtaq, while he was being taken to the hospital, succumbed to the injuries. The motive according to F.I.R. Was that one day prior which was an Eid day before the prayers, some altercation took place between Muhammad Mushtaq deceased and Muhammad Ramzan acquitted accused over validity of interest.
Muhammad Mushtaq slapped Muhammad Ramzan. However, the villagers effected compromise between the two but Ramzan kept the grudge in his heart and for that reason murderous assault was launched by him and his companions. It may be noted here that Abdul Rahim, Muhammad Ramzan, both acquitted accused, were brothers; Khalid, Muhammad Abdullah, the acquitted accused, Khalil appellant and Rahmat Ullah/absconder were sons of Ramzan, while Yamin appellant belonged to the same caste. It is in evidence that after the quarrel, the villagers, who had assembled to say Eid prayers, effected compromise between Ramzan and the deceased and both the parties offered their prayer together. No previous enmity or ill-will existed between the parties, who had assembled to say Eid prayer in mosque; hence, it did not appeal to reason that Ramzan who was aged about seventy years, would launch murderous assault, while being accompanied by his real brothers, four sons and Yamin, all of whom were equipped with deadly weapons.
Knowing the weakness of the motive, both the P. Ws. Made dishonest improvements during the trial by stating that on the occasion of Eid-ul-Azha, the Imam of the village mosque made a sermon that the sacrifice of the animals for Qurbani which were purchased by Rizzaq-i-Halal would be accepted and if the animals were purchased from the income of interest, the same will not be accepted by Allah Almighty. Ramzan acquitted accused stood up, went in front of the Maulvi and said to him that the Holy Prophet (Sallallaho Alaihey Wa Allehi Wa-Sallam) had also been trading and receiving interest. At this, Muhammad Mushtaq deceased, who was the Councillor of the village, intervened and asked Ramzan accused to which sect he belonged. Then they both grappled with each other. The deceased gave slap and fist blows to Muhammad Ramzan/accused. However, the respectables patched up the matter. It is a common knowledge that if Ramzan had uttered a single word against the conduct of the Holy Prophet (Sallallaho Alaihe Wa Alehi Wa-Sallam), then whole of the villagers would have taught him a lesson there and then and would not have spared him. Ramzan himself was a Muslim and had gone to say prayers in the mosque. He could not dare to level any such allegation against the Holy Prophet (Sallallaho Allaihey Wa Alehi Wa-Sallam), whose teachings throughout were against the income obtained through interest. The witnesses were duly confronted with their earlier statements and none from the Namazies who were present in the mosque or Imam Masjid was produced in support of the motive. What led to this unfortunate occurrence is shrouded in mystery. According to P.Ws., they and the deceased were gossiping in front of the house of Gulzar when the accused emerged. Both the witnesses lived at a distance of 5/6 Killas from the spot. According to P.W.3, they had gathered in front of C the house of Gulzar per chance. The perusal of site plan Exh.P.G., which was prepared in the presence of the P.Ws., reveals that at the time of occurrence, the complainant and his son Khalil Ahmad were at a distance of forty-five feet from the spot on the northern side, while Abdul Rasheed/P.W., who was not produced during trial, was present at a distance of fifty feet from the spot. Prima facie, it belies the story that the deceased and the P.Ws. Were gossiping together in front of the house of Gulzar as in that case, the witnesses would not be at a distance of forty-five feet. They would be standing close to Mushtaq deceased. The presence of P.W.4 has been shown at a distance of six feet from the spot. However, it was not mentioned in the F.I.R. That he was also present while the complainant, his son Khalil Ahmad and the deceased Muhammad Mushtaq were gossiping in front of the house of Gulzar. The names of Abdul Rasheed (who was not produced during trial) and Murtaza were mentioned as P.Ws. At the end of the F.I.R. In order to justify his presence at the spot, Murtaza came out with the story of discussion about the harvesting machine.
He also came out with a different story about the motive by stating that his father Mushtaq deceased separated Maulvi Sahib from the clutches of Ramzan accused. He added that Ramzan and other accused present in Court left the Maulvi and caught hold of his father and quarrelled with him. This portion of his evidence is in direct conflict with the statement of the complainant before the trial Court and the story narrated in the F.I.R. According to him, the accused continued firing for about fifty minutes and effected about 150 or more fires. He further stated that the accused also fired at him but due to obstacle of pillar, he did not receive any injury. He further stated that Mst. Abida sister of Rahmat Ullah accused, who, according to the accused party, was removed to the hospital by police in a police vehicle, where she was got admitted by the police.
This was nobody's case. He further stated that he did not accompany his father while he was being taken to the hospital. A son in whose presence his father received injuries would not do so. In the above noted circumstances, it is more than obvious that Ghulam Murtaza was not present at the time of occurrence. As far as Fakhar-ud-Din/P.W.3 is concerned, not only that he made dishonest improvements before the learned trial Court but also suppressed certain material facts. Firstly, he stated that Mst. Abida was not injured in this occurrence. Then he volunteered that she was injured by the accused on the same day in their house to make a counter-case against the complainant party. Then he admitted that in the evening of the occurrence, the police in the company of Abdul Rahman and Yousaf Lambardar visited the house of accused Ramzan where they were informed that Mst. Abida had been injured in the incident and that she was admitted in the same hospital where the dead body of Mushtaq was lying. He further admitted that when the police came to the hospital in the evening of occurrence, Mst. Abida was also admitted in the hospital. Rahmat Ullah was arrested from the hospital and he was arrested in his presence. He also admitted that case was registered against him and others for injuring Abida after 1-3/4 months of the occurrence. He reiterated that Rahmat Ullah was arrested on the same day and the accused remained at the police station for twenty-five days for the purposes of investigation. This witness is not shy of adjusting his statement according to the circumstances of the case. In F.I.R. He categorically stated that after the deceased fell on the ground, all the' accused fired at him; resultantly, the deceased received injuries on different parts of his body, while in his statement before the learned trial Court, he did not mention that all the accused had fired at the deceased after his falling down; obviously, for the reason that seven persons were implicated in this case. Six of them were armed with fire- arms. Three of them caused specific injuries and thereafter all the six caused injuries on the person of the deceased, whereas the deceased had received only eight injuries, which according to the doctor, were caused by one type of weapon. The medical evidence supports the prosecution case only to the extent that the deceased lost his life due to injuries caused by fire-arms but it does not support the prosecution evidence. According to P.W.3, the fires were caused from a distance of 30/40 feet. According to P.W.4, the fires were caused from a distance of 40/45 feet. According to site plan, the distance between the assailants and the deceased was forty-five feet. That means that fires were caused from a quite distance and the scattering of pellets was natural. Perusal of the medical evidence reveals that injuries Nos.1, 2 and 3 were on the right side of face; injury No,4 was on the front and side of neck; injury No,5 was on the front of left shoulder; injury No,6 was on the front and back of right shoulder; injury No,7 was on the right part of chest and injury No,8 was on the left side of chest. All the injuries were caused by pellets which contradicts the prosecution case that Abdul Rahim who was armed with .7 mm rifle and Abdullah who was armed with .30 bore pistol effectively took part in the occurrence. The doctor stated that the injuries on the person of the deceased were possibly the result of one and the same kind of weapon. He further stated that the police papers were received by him fifteen minutes before the post-mortem examination, which was conducted on the next day at 11-50 a.m. It is also noteworthy that the dimension of the pellet mentioned in the injuries was the same i.e. 1/4 c.m. x 1/4 c.m.
11. The upshot of the above discussion is that the injuries could have been caused by a single person with a single weapon. It finds further IF support from the fact that no empty was recovered from the spot.
12. Tahir Majeed, Insepctor/P.W.10, who investigated the case, did not make honest statement before the learned trial Court. He had conducted the investigation of the case in lopsided manner.
He showed the arrest of Rahmat Ullah and other accused on 14-5-1996, while P.W.1 ,admitted that Rahmat Ullah was arrested on the same date, i.e. In the evening of the occurrence, from the hospital. The Investigating Officer further stated that he came to know about the injuries caused to Rahmat. Ullah on 14-5-1996. It was a lie. He dishonestly stated before the learned trial. Court that he came to know about the injuries of Abida sister of Rahmat Ullah on 14-5-1996. He also dishonestly stated before the learned trial Court about Mst. Abida Bibi being injured initially. Then he admitted that during investigation, it came to his knowledge that Abida Bibi also received injuries. There are discrepancies between the P.Ws. And the Investigating Officer about the recording of statements of P.Ws. And the reporting of matter. The post-mortem examination was conducted on the next day at 11-50 a.m., while the dead body was lying in the hospital since evening. The doctor, who is an independent witness, stated on oath that he conducted post-mortem examination after fifteen minutes of the receipt of police papers. This shows that the F.I.R., in fact, was recorded at much delay and due deliberations. The witnesses have given I a very exaggerated version of the occurrence, which is obvious from the above noted facts and from the fact that Muhammad Ramzan, who was aged about seventy years, was also shown to be armed with a Chhuri. There was hardly any necessity for Muhammad Ramzan to come armed with a Chhuri, which could be of no use, as 5/6 six other accused were allegedly armed with deadly weapons. So no credence can be placed on the testimony of the P.Ws. According to prosecution case, Khalil appellant led to the recovery of revolver, while according to P.Ws., he was armed with a .12 bore gun. The recovery cannot be used as far as Yamin is concerned. He had no motive whatsoever to join the appellant in occurrence. The weapon recovered at his instance was never sent to the Forensic Science Laboratory nor any motive was collected from the place of occurrence; hence, the same could not be used against him.
13. In the above noted circumstances, we are of the opinion that the prosecution has failed to establish its case against both the appellants beyond doubt. Hence, this appeal is accepted and the judgment passed by the learned trial Court to their extent is set aside. The appellants Khalil and Yamin are acquitted of all the charges. They would be released forthwith if not required in any other case. The death sentence is Not confirmed. The murder reference is answered in the negative.
14. Now coming to the case of Rahmat Ullah. As per record, as noted earlier, when after the close of defence evidence, the case was fixed for final arguments, Rahmat Ullah accused absented himself and was declared proclaimed offender. The learned trial Court in paragraph 26 of its judgment held that the prosecution proved its case against Rahmat Ullah, Khalil alias Nanna and Yamin, accused, for causing intentional murder of Mushtaq. The conviction and sentence was pronounced against Khalil alias Nanna and Yamin, appellants. However, no verdict/sentence was pronounced against Rahmat Ullah, who had absconded, and perpetual warrants of arrest were issued against him. The order passed by the learned trial Court, whereby the perpetual warrants of arrest were issued against Rahmat Ullah would remain in fact. The learned trial Court shall decide his case after his arrest.