' The appellants Nazra alias Nazira (aged 26 years) and Muhammad Riaz (aged 28 years) were tried together with Allah Bakhsh, Gulzar and Muhammad Yar co-accused by a learned Additional Sessions Judge at Sargodha, for offences under sections 302, 307 read with section 149 and section 148 of the Pakistan Penal Code for causing the death of Nazar Hussain deceased, committing murderous assault on Muhammad Ali (P. W. 11) and rioting. The learned Additional Sessions Judge convicted Nazra appellant under section 302, P. P. C. And sentenced him to death and also asked him to pay a fine of Rs, 5,000 or, in default, suffer rigorous imprisonment for one year. He convicted Muhammad Riaz appellant under section 307, P. P. C. And sentenced him to a term of rigorous imprisonment for three years in addition a fine of Rs, 1000, or, in default, to receive six months rigorous imprisonment. Allah Bakhsh and Gulzar were convicted under section 323, P. P. C. And sentenced to only fine of Rs, 500 each, or, in default, to undergo rigorous imprisonment for three months while Muhammad Yar was acquitted of all the charges.
' The appellants have preferred separate appeals bearing Criminal Appeals Nos. 697 and 692 of 1978 respectively against their conviction and sentence while the learned Additional Sessions Judge has also made a reference to this Court under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed upon Nazra appellant. This judgment will dispose of all the three matters.
2. The complainant party and Muhammad Riaz appellant were the residents of village Hazoorpur.
Nazra appellant and Muhammad Yar and Gulzar co-accused lived in village Ahlidhabani while Allah Bakhsh co-accused resided in village Wadhan. All these villages are located within a radius of about 3/4 miles.
3. It was the case of the prosecution that about three years prior to the occurrence, Nazra appellant and some others had murdered Jahana who was phupha of Muhammad Ali (P. W. 11) and also a close relation of Nazar Hussain deceased. They were challaned for that murder and the case was pending in Sessions Court, Sargodha. Nazar Hussain deceased in the instant case, his brother Shah Muhammad and Muhammad Ali (P. W. 11) were pursuing that case. Again, 6/7 months before the occurrence, the two appellants and some others caused injuries to aforesaid Shah Muhammad and a case under section 325, P. P. C. Was registered against them which was also pending in a Court.
4. On the day of occurrence, that is, 16th February, 1976, a Kabadi match was held in the river-bed Jhelum in the area of village Wadhan with the jurisdiction of and at a distance of 6 miles from Police Station Miani, District Sargodha. A large number of people from the adjoining villages had assembled to see the match. Abdul Ahmad (P. W. 10) together with Nazar Hussain deceased, Muhammad Ali (P. W. 11), Mureed Ahmad and Nadir Hussain had also gone there to see the match.
The match ended at 2-30 p.m, and the people started returning home. Abdul Ahmad (P. W. 10) and his companions also started for their village. Muhammad Ali (P. W. 11) carried a dang while Nazar Hussain deceased was armed with a hatchet. They were going ahead while Abdul Ahmad (P. W. 10) fell a little behind. When they reached other side of the river-bed, Nazra appellant armed with a -12 bore gun, Muhammad Riaz appellant carrying a hatchet and Muhammad Nawaz (later on substituted by Muhammad Yar), Gulzar and Allah Bakhsh co-accused carrying dings came from the opposite direction. They were raising lalkaras to finish their opponents. Muhammad Riaz appellant opened attack by giving a hatchet blow on the head of Muhammad Ali (P. W. 11) who, in turn, struck a dang blow on the head of Gulzar co-accused. Muhammad Riaz gave a second hatchet blow to Muhammad Ali (P. W. 11) which fell on the right forearm. Then Gulzar, Allah Bakhsh and Muhammad Nawaz gave successive dang blows to Muhammad Ali (P. W. 11). Thereafter, Nazar Hussain deceased struck a hatchet blow to Muhammad Nawaz. At this stage, Nazra appellant fired at the deceased hitting on the pelvic region and he fell down. Finally, Muhammad Ali (P. W. 11) struck a dang blow which fell on the gun of Nazra appellant breaking its butt. Abdul Ahmad (P. W.
10) and others came up whereupon the assailants fled away.
' Abdul Ahmad (P. W. 10), on the same day at 5 p.m. Lodged F.
1. R. Exh. PX at the police station recorded by the S H. O., S. I. Abdur Razzaq (P. W. 12).
5. The deceased together with Muhammad Ali (P. W. 11) was taken to the Civil Hospital, Bhera, arriving there at 5.20 p.m., but he died before he could be examined by the doctor. Dr. Muhammad Afzal (P. W. 1) who, at the relevant time, was the Medical Officer, examined Muhammad Ali (P. W. 11) on the same day at 5.30 p.m. And found two incised wounds, a contusion, a bruise and some swellings. Of the incised wounds one was 2" x f" bone deep, on the back side of the head and the other, f" x I", on the right forearm. The humorous was found to have been fractured.
' The doctor on 17th February, 1976 at 9-10 a.m. Performed the post-mortem examination of the deceased and found 11 fire-arm wounds in an area of 3" x 4" on the pelvic region. The pelvic bone was found to have been fractured, right kidney torn and femoral vessels perforated. Three pellets were removed from the wound. He opined that the deceased died due to shock and hemorrhage on account of the injury which was sufficient in the ordinary course of nature to cause death. He further opined that the deceased died two to three hours after the receipt of the injury.
' The same doctor on 21st February, 1976 at 5 p.m. Also examined Gulzar co-accused and found two swellings, one was 4 x 2f" extending from left mandible angle to the eye-brow. Both the eye-lids were blue and there was also sub conjectural hemorrhage. ' The other welling was 4" x 3" on the back of left lumbar region. Gulzar also complained of pain on the right temporal region and neck.
The doctor kept the injury on the mandible and neck under observation and declared the rest as simple. He opined that the injuries had been caused about 5 days earlier He referred him to District Headquarters Hospital, Sargodha, for admission and X-ray. The police on 6th March, 1976 inquired from him about the result of the injuries kept under observation but he asked them to contact the Medical Officer. District Headquarters Hospital in this behalf. S. I. Abdur Razzaq (P. W. 12) collected X- ray report Exh. PBB along with X-ray film Exh. PBB/1 according to which the parietal region was found to have a linear fracture.
' The doctor on 6th March. 1976 examined Muhammad Yar co-accused but did not find any injury or mark of violence on his person vide certificate Exh. DA issued by him.
' The same doctor once again examined him on 17th March, 1976 and found a healed incised wound 2- x 1 t- on the head in the parietal region, He opined that the injury had been caused a month earlier. His report is Exh. PJ/1. However, he.Failed to reconcile the two reports.
6. The case was investigated by S. I. Abdur Razzaq (P. W. 12). On 17th February 1976 he recovered from the spot broken butt P. 4 and .12 bore cartridge case P. 9 and took the same into his possession vide memo ran dum Exh. PE and Exh. PS respectively also witnessed by Muhammad Ishaq (P. W. 8) and Mureed Ahmad who was given up by the prosecution as having been won over.
He arrested the appellants on 25th February, 1976 when produced before him in village Chani Sayyedan. At the same time Muhammad Riaz appellant produced blood-stained hatchet P. 5 and Nazra appellant produced broken gun P. 6 and he took the same into his possession vide memoranda Exh. PT and Exh. PU respectively also witnessed by Ghulam Muhammad (P. W. 9) and one Fateh Muhammad who was given up by the prosecution as being unnecessary. The gun was licensed in the name of Allah Bakhsh co-accused, It seems that hatchet P. 5 was not sent to the Chemical Examiner for examination. However, according to the report Exh. PEE of the Fire Arm Expert cartridge case P. 9 was found to have been fired from gun P.
6.
7. The appellants pleaded not guilty and controverted the charges against them. They denied their presence at the scene of occurrence and attributed falls implication due to enmity. Likewise Allah Bakhsh and Muhammad Yar co-accused denied their presence at the spot and stated that they had been falsely implicated due to enmity. Gulzar accused also denied the prosecution case but put up an entirely different version saying that on the defeat of one of the players a general fight ensued in which he suffered injuries at the hands of Muhammad All (P. W. 11) and the deceased.
During the melee, the deceased received a gunshot fired by someone from the crowd. None of the accused led evidence in defense.
8. The lamed Additional Sessions Judge came to the conclusion that the occurrence was not the result of a premeditated attack but an outcome of a flare-up among the spectators at the end of the match and taking it to be a case of individual liability, he convicted the accused accordingly.
9. The case of the prosecution rests entirely upon the ocular account provided by Abdul Ahmad (P.
W. 10) and Muhammad Ali (P. W. 11). Mureed Ahmad and Nadir Hussain also cited in the F. I. R. As eyewitnesses were given up by the prosecution, the former as having been won over and the latter as unnecessary. Abdul Ahmad (P; W. 10) was 'a cousin as also brother-in-law of the deceased.
Muhamtnad Ali (P. W. 11) too was a close relation though exact relationship was not brought on the record. They were also inimical towards the accused on account of previous murder of Jahana.
The accused too were related inter se except Allah Bakhsh. Nazra and Muhammad Riaz were Khalazad, Gulzar and Muhammad Yar were paternal-cousins and their phuphi was married to Nazra's brother. As the witnesses were interested and inimical, it becomes4 necessary to scrutinize their testimony with extra care and caution and also( look for independent corroboration.
10. Abdul Ahmad (P. W. 10), the first informant, in his supplernea, tary statement, substituted Nawaz for his brother Muhammad Yar, acquit. Ted co-accused. It is to be noticed that not only he mentioned Nawaz in the F. I. R. As one of the assailants but also alleged that he caused injuries to Muhammad Ali (P. W. 11) and in return received a hatchet blow from the deceased. A part from that, Nawaz was repeatedly mentioned in the inquest report despite the fact, as admitted by S. I. Abdur Razzaq (P. W. 12), that the supplementary statement was recorded before the preparation of the inquest report. Nawaz was only a boy of 14/15 years and a student of VIIth Class while Muhammad Yar was a grown up man of 25 years. Thus there was hardly any chance of mistaken identity. It appears that the witness made a deliberate attempt to falsely implicate Muhammad Yar acquitted co-accused.
11. Both, Abdul Ahmad (P. W. 10) and Muhammad Ali (P. W. 11) have given a different version of the occurrence from the one given by them in the first instance. They stated at the trial that the accused party emerged from a nearby wheat field whereas their position before the police was that they had come from the opposite direction. This is an improvement obviously made with a view to reinforce their claim that the assailants launched a premeditated attack. The learned Additional Sessions Judge did not accept this part of their testimony and came to the conclusion that the attack was not preplanned but the result of a flare-up. We see no reason to take a different view. The incident took place almost in the Kabadi ground where 300/400 spectators had assembled to see the match who were still present and also witnessed the occurrence from a distance of a killa or two. In such a situation, it appears most unlikely that the assailants would have selected the place and time for a preplanned attack. The mere fact that the assailants were allegedly armed does not militate against the view for the villagers admittedly carried arms on such occasions.
' They also gave a totally different version of the sequence of attack. They stated at the trial that after the first two blows, one by Muhammad Riaz appellant to Muhammad Ali (P. W. 11) and the other by Muhammad Ali to Gulzar accused, the deceased hit Muhammad Yar, acquitted co- accused, and then Nazra appellant fired at the deceased and also reloaded the gun. In the meantime Muhammad Ali (P. W. 11) struck a dang blow upon the gun breaking its butt. Thereafter Muhammad Riaz appellant gave a hatchet blow on the right arm of Muhammad Ali (P. W. II).
Finally, Gulzar, Allah Bakhsh and Muhammad Yar accused gave successive dang blows to Muhammad All (P. W. 11) and he fell down on the ground. However, their position in the first instance was that after the exchange of, the first two blows, Muhammad Riaz appellant gave another hatchet blow to Muhammad All (P. W. 11) on the right fore-arm. Then, Gulzar, Allah Bakhsh and Nawaz accused gave successive blows to. Muhammad Ali. Thereafter the deceased gave a hatchet blow to Nawaz. At this stage, Nazra appellant fired at the deceased and last of all Muhammad Ali (P. W. 11) struck the gun. The change in the sequence of attack seems to have been necessitated so that the initial version may not appear to be improbable. According to the version given in the F. I. R. Muhammad Ali (P. W. 11) had received all the injuries including the injury on the right forearm resulting in the fracture of the humerous. If it was so, then it was highly improbable that he would have been able to wield the dang and that too, with such a force as to break the gun in two parts. Again, the shift about Nazra appellant firing at the deceased before Muhammad Riaz appellant gave a second hatchet blow to Muhammad All (P. W. 11) and Gulzar, Allah Bakhsh and Muhammad Yar accused gave him successive blows, was also a deliberate improvement to negative their earlier stand that Nazra appellant had fired last of all. They had to admit that the deceased was fired at after he himself and Muhammad All (P. W. 11) had caused injuries to the accused party. Again, for the first time at the trial, they stated that Nazra appellant reloaded the gun and that the butt of the gun was left at the spot. This improvement appears to be an afterthought to strengthen the case against Nazra appellant. It finds support from the fact that although S. I. Abdur Razzaq (P. W. 12) allegedly recovered butt P. 4, sealed it into a parcel and sent the same to the Police Station for its deposit in the Malkhana, but it never reached there.
' Muhammad Ali (P. W. 11) was also a man of dubious antecedents. He was convicted and sentenced to life imprisonment for the murder of one Bakhsha and served the sentence.
12. On the above analysis, we are of the view that the testimony of the witnesses is not of such a quality upon which implicit reliance can be placed to convict the appellants on a capital charge without independent corroboration or some confirmatory circumstance. The mere admission of Gulzar accused that he suffered injuries in a fight during the match would not furnish a circumstance in support of the prosecution case because of his version being entirely different.
13. There was no other evidence against Muhammad Riaz appellant. As regards Nazra appellant, the prosecution sought to rely upon the recovery of broken butt P. 4, cartridge case P. 9 and gun P.
6 against him and examined Muhammad Ishaq (P. W. 8) and Ghulam Muhammad (P. W. 9) apart from S. I. Abdur Razzaq (P. W. 12). Both the witnesses were residents of village Hazoorpur while the recoveries were effected from village Wadhan and Chani Sayedan. They also did not enjoy any special status in the locality. Both were admittedly related to the complainant party. They also remained associated with the investigation of the case right from the beginning. Ghulam Muhammad (P. W. 9) witnessed the recoveries on various occasions, that is, 25th February, 1976, 27th February, 1976 and 2nd March,
76. S. I. Abdur Razzaq (P. W. 12) stated that Nazra appellant appeared before him on 25th February, 1976 and at the same time produced gun P.
6. But, he stands contradicted by Ghulam Muhammad (P. W. 9) who stated that Nazra appellant appeared before the police on 20th February, 1976. If that was so, then the gun P. 6 must have been recovered on 20th February, 1976. Both M. H. C. Muhammad Jamil (P.W. 6) and F. C. Muhammad Yousuf (P. W. 3) stated that cartridge case P. 9 remained in the Malkhana till. 21st February, 1976. The possibility of concocting the crime empty, therefore, cannot he precluded. Further, he stated that none else was present at the time of recoveries but again he was contradicted by the witnesses who stated that 10/15 other persons were present there. He admitted that he asked the witnesses to witness the recoveries for they belonged to the complainant party and were of the same type. He stated that on 17th February, 1976, he gave three sealed parcels containing blood-stained earth, broken butt P. 4 and cartridge case P. 9 to F. C. Muhammad Yaqoob (P. W. 4) for depositing the same in the Malknana at the Police Station. But he was belied by F. C. Muhammad Yaqoob (P. W. 4) who stated that he received only two parcels which he delivered to M. H. C. Muhammad Jamil (P. W.
6) who, in turn, stated that the two parcels contained blood-stained earth and the crime empty.
' In these circumstances, the recoveries become highly doubtful and cannot be used as a corroborative piece of evidence.
14. For all the reasons stated above, we are of the view that the prosecution has failed to prove its case against any of the accused. Thus we are unable to maintain the conviction and sentence of the appellants as recorded by the learned Additional Sessions Judge. Accordingly, we set aside their conviction and sentence and acquit them. They shall be set at liberty forthwith if not required in any other case. The sentence of death imposed upon Nazra appellant is not confirmed.
15. Although Gulzar and Allah Bakhsh convicts have not come up in appeal but, in view of our finding, we think that its benefit should also C extend to them. We, therefore, in exercise of our provisional jurisdiction acquit them as well.