Kazim Ali Malik, J.--Muhammad Ashraf, Ghulam Nabi, Muhammad Shafi, Muhammad Ishaq, Rafaqat Ali and Mushtaq, all Arain by caste, residents of village Kull, Tehsil Chunian, Distt. Kasur were reported against in a case F.I.R, No, 181 dated 6.6.1998 registered with Police Station Kanganpur, Distt. Kasur. They were challaned to the Special Court at Kasur established under the Suppression of Terrorist Activities (Special Courts) Act, 1975, to stand trial on 'the charge of rioting and double murder. As per prosecution case Muhammad Ramzan and Muhammad Mansha suffered death in this happening. On conclusion of trial Muhammad Mushtaq, Ghulam Nabi and Muhammad Shafi, accused persons were acquitted of the charge, Muhammad Ashraf was convicted under Section 302 (b) PPC for having committed Qatl-iAmd of Muhammad Ramzan, deceased and was sentenced to death. He was also ordered to pay Rs, 50,000/- as compensation to the legal heirs of the said deceased in terms of Section 544-A Cr.P.C. and in case of default thereof to undergo simple imprisonment for six months. Muhammad Ishaq and Rafaqat Ali were convicted under Section 302(b) read with 34 of the P.P.C. for having murdered Muhammad Mansha, and both of them were sentenced to death. They were also directed to pay Rs, 50,000/- as compensation in equal shares to the legal heirs of Muhammad Mansha, deceased and in case of default in payment of compensation to suffer simple imprisonment for six months each. The State or the complainant did not file an appeal against the acquitted accused persons and in this way their acquittal by the trial Court attained finality.
2. Muhammad Ashraf, Muhammad Ishaq and Rafaqat Ali convicts challenged their conviction and sentence through Crl. Appeal No, 1364 of 2000. The complainant also filed Crl. Revision No, 178 of 2001 with a request for enhancement of compensation. Before disposal of the appeal on its merits, the legal heirs of Muhammad Ramzan, deceased affected a compromise with Muhammad Ashraf, appellant and compounded the offence of Qatl-i-Amd of Muhammad Ramzan deceased, Resultantly, Muhammad Ashraf, was acquitted of the charge in terms of compromise. In this way, only Muhammad Ishaq and Rafaqat Ali, appellants remained in field to prosecute the appeal. We find it convenient to dispose of the appeal and the revision together by this single judgment.
3. The prosecution case set up in the F.I.R., Ex. P.A/1, in brief, is that on 6.6.1998 at about 3:30 p.m.
Muhammad Siddique (complainant), P.W.1, Muhammad Ramzan, Muhammad Mansha (deceased persons), Muhammad Boota, P.W.2, Muhammad Sharif and Eida (given up P.Ws.) were on their way from the land of Muhammad Ramzan, deceased to village Kull, when Ghulam Nabi (acquitted accused). Muhammad Ashraf (acquitted in terms of compromise), Muhammad Mushtaq (acquitted accused), Muhammad Shafi (acquitted accused), Muhammad Ishaq (convict), and Rafaqat Ali (convict) respectively armed with Soto, 222 rifle 7 mm rifle, pistol .30 bore, gun .12 bore and rifle 7 mm confronted them. Ghulam Nabi, accused threw challenge upon which Muhammad Ramzan (deceased) started running. Muhammad Ashraf, (acquitted appellant) fired with rifle hitting Muhammad Ramzan on his back Muhammad Ishaq (appellant) fired with gun .12 bore striking Muhammad Mansha on his left thigh. Thereafter, Rafaqat Ali (appellant) fired with rifle causing an injury on the right hip joint of Muhammad Mansha. Subsequent to this, all the above named accused persons resorted to indiscriminate firing without causing an injury to the P.Ws. as they made themselves lie on the ground.
Muhammad Ramzan yielded to his injuries at the spot. Muhammad Mansha was removed to the hospital in an injured condition. Initially the F.I.R. was lodged by Muhammad Siddique, P.W. 1 on the charge of murder and attempted murder. Muhammad Mansha also succumbed to his injuries and it became a case of double murder.
Motive for the occurrence, as set up in the F.I.R. was a land dispute between Muhammad Ramzan, deceased and Muhammad Ishaq, appellant.
4. On 6.6.1998 at 5.45 p.m. Dr. Liaqat Ali, Medical Officer, Rural Health Centre Kangan Pur, (P.W.3) medically examined. Muhammad Mansha while being alive and noted the following injuries on his person:
(i) Fire arm wound of entry 1 cm x 0.8 cm on the outer aspect of right hip joint with perfused bleeding and heamatoma in right side of inguinal area.
(ii) Fire arm wound of entry 0.6 cm x 0.4 cm on the outer aspect of upper part of left thigh with bleeding.
(iii) Incised wound 5 cm x 1 cm on inner side of palm of left hand.
The medical examiner recorded report (Ex.PB) in this regard and opined that the above said Injuries No, 1 and 2 were caused by fire arm with no exit wound whereas Injury No, 3 was result of sharp edged weapon. Probable duration between injuries and medical examination was 3 to 4 hours. The medical examiner referred the examinee to General Hospital, Lahore keeping in view his critical condition where he passed away. The dead body was removed to the dead house attached with Rural Health Center, Kangan Pur, Kasur where Dr. Nawab Din, another Medical Officer (P.W.4) made autopsy on the dead body at 1.30 p.m. on 7.6.1998 and found the following injuries: (1-A) A fire-arm wound of entry cm x 4 cm x muscle deep with inverted margins on outer aspect of left thigh, 17 cm inferolateral to left anterior superior iliac spine.
(1-B) A fire-arm wound of exit 1 cm x 1 cm x muscle deep with averted margins on outer aspect of right thigh 7 cm inferolateral to right anterior superior iliac spine.
(2) An incised wound with sharp edged weapon 5 cm x 5 cm x muscle deep on palmer aspect of left hand.
On dissection, urinary bladder and right femoral vessels were found perforated. Pulvis was full of blood. Clotted blood was found in the injured muscles of both thighs. No foreign body was seen or found. In the opinion of the post mortem examiner, Muhammad Mansha died of haemorrhage and shock caused by above said Injuries No, 1-A and 1-B, which were ante mortem and sufficient to cause death in ordinary course of nature. Probable time which elapsed between injuries and death was 2 to 4 hours and between death and autopsy was 16 to 20 hours.
5. On 6.6.1998 Muhammad Bashir, Sub-Inspector, P.W 14 recorded statement, Ex.PA of Muhammad Siddique, complainant on the basis of which formal F.I.R., Ex. PA-1, was drawn up. The Sub-Inspector reached the spot, prepared inquest report/injury statement respectively Ex.PP and Ex.PQ of Muhammad Ramzan, deceased and then dispatched the dead body to the mortuary. He secured blood stained earth from the spot of murder of Muhammad Ramzan by means of memo Ex.PH. He also collectedblood stained earth from the spot of murder of Muhammad Mansha vide memo Ex.
PM. An empty of rifle 222, (P.8) lying at the spot was seized under memo Ex. PN. He prepared rough site plan Ex. PS, examined the witnesses and then left for the hospital after having received an information that Muhammad Mansha had succumbed to his injuries. The investigator prepared inquest report Ex.PT and injury statement Ex.PV in respect of dead body of Muhammad Mansha and handed it over to a constable for onward transmission to the mortuary. After post mortem examination the escorting police official produced the last worn clothes of Muhammad Mansha, deceased which were taken into possession vide memo Ex.PF. The last worn clothes of Muhammad Ramzan, deceased were also seized under memo Ex.PG. On 11.6.1998 Eida (not examined) father of Muhammad Mansha, deceased produced license (P.9) of rifle 303 in the name of Muhammad Mansha, deceased which was taken into possession by the investigator by means of memo Ex.PW.
Subsequent to this, the investigation was taken up by Khuda Yar Khan, Inspector/S.H.O., P.W.
15. On 14.6.1998 the S.H.O. arrested Rafaqat Ali, Muhammad Ishaq (appellants), Ashraf, Ghulam Nabi and Muhammad Shaft, accused persons. Muhammad Ishaq, appellant got recovered gun .12 bore (P.6) which was taken into possession under memo Ex.PK. Rafaqat Ali, appellant led to the recovery of rifle 7 mm (P.5) which was seized vide memo Ex.PJ. Muhammad Ashraf, accused got recovered rifle .222 (P. 10) and its license (P. 11) which were taken into possession by means of memo, Ex. PX.
Muhammad Ashraf, accused led to the recovery of licenced rifle of Muhammad Mansha, deceased, (P.7) from his residential house which was taken into possession under memo, Ex.PL.
6. On conclusion of investigation, the S.H.O. formed an opinion that evidence qua Muhammad Ashraf, Muhammad Ishaq and Rafaqat Ali was sufficient whereas it was deficient to the extent of the remaining accused persons.
7. At the inception of trial all the six accused persons were charged under Section 148 P.P.C. for having formed an unlawful assembly, which resulted in violence and under Section 302 P.P.C. read with Section 149 PPC (on two counts) for having committed Qatl-i-Amd of Muhammad Ramzan and Muhammad Mansha in prosecution of common object of the unlawful assembly. The accused persons denied the charge and claimed trial.
8. The prosecution examined 15 P.Ws. in all. Muhammad Siddique, P.W.1 and Muhammad Boota, P.W.
2 furnished ocular account of the incident. The former mentioned also deposed about the motive.
Dr. Liaqat Ali, P.W. 3 and Dr. Nawab Din, P.W.4 proved the medical evidence. The investigators proved their respective investigation. Statements of the remaining witnesses being formal in nature have no bearing on the fate of the case.
9. When examined under Section 342 Cr.P.C. the accused persons denied and dismissed each piece of prosecution evidence put to them. Only Mushtaq, accused (since acquitted) put forward defence version in detail, which is reproduced below in verbatim:- "The P.Ws. are inter se related and to the deceased and they have deposed falsely due to this relationship. I am innocent. The real facts are that even prior to the present occurrence, Mansha, deceased had snatched forcibly alongwith others a tractor valuing 3 lacs from Muhammad Siddique, complainant. On the statement of Muhammad Siddique, complainant FIR No, 165/97 P.S. Kanganpur was registered against Mansha deceased and others. On the day of occurrence, I alongwith Mst. Khalida Bibi widow of Mansha, deceased and other relatives and Mansha, deceased were coming from the fields towards the village. When we reached near the haveli of Fazal Din, we saw that Muhammad Sharif, Amanat Ali and Ramzan, deceased armed with rifles, and sotas, real brothers of the complainant Siddique and Abbas armed with pistol emerged from old graveyard.
Amanat raised lalkara that Mansha be taught a lesson for forcibly snatching the tractor from the complainant. Upon this Ramzan, deceased fired with his rifle which hit on my right thigh instead of hitting Mansha, deceased. Upon this Mansha who was armed with rifle fired in self defence which hit Ramzan, deceased which landed on back which injury he succumbed later on. At this Sharif fired with his rifle at Mansha, deceased hitting him on left thigh who fell down after being injured.
Muhammad Mansha, injured and myself were being taken to the hospital. In the way Mansha expired. I was medically examined by doctor at Services Hospital, Lahore where I was sent and a Medico Legal No, 35006 dated 6.6.98 was issued by the C.M.O. Services Hospital, Lahore. My medico legal was exhibited as C.W.1/A. Later on, Muhammad Siddique, complainant fabricated a false story against us. Khalida Begum widow of Mansha deceased filed a complaint and the same was being tried alongwith the main case when during trial question of compromise between the parties arose, Khalida Begum in order to ensure her sincerity, I and Khalida Begum took initiative to facilitate the compromise and withdraw the private complaint but unfortunately this gesture of good will on our part was not reciprocated by the other party. I tender in evidence certified copy of the complaint titled Mst. Khalida Begum widow of Mansha v. Muhammad Sharif etc. U/Ss.
302/324/334 P.P.C. P.S. Kanganpur (Ex.DB), I also tendered F.I.R. No, 165/97 dated 24.5.1997. P.S Kanganpur U/S. 395 P.P.C. registered at the instance of Muhammad Siddique complainant against Muhammad Mansha deceased (Ex.DC). The accused took away the licenced rifle of Mansha deceased husband of Khalida Begum, while running from the spot."
10. At trial Khuda Yar Khan, investigator (P.W. 15) disclosed that Mushtaq (acquitted accused) also sustained fire arm injuries in the occurrence and keeping in view his, critical condition while lying in the hospital his arrest had been postponed. The investigators did not take required steps for medical examination of Mushtaq Ahmad. Rather the fire arm injuries on his person had been concealed and suppressed during the course of investigation. Mushtaq Ahmad, accused was medically examined for the fire arm injuries, which he received during the occurrence. His medical examiner was not cited as P.W. The medico legal report about his injuries was also not brought on record. The learned trial Court examined Dr. Muhammad Bashir, C.M.O. Services Hospital, Lahore as court witness and in this way the injuries on the person of Mushtaq, acquitted accused were brought on record for the first time on 20.6.2000. The court witness deposed that on 6.6.1998 at 6.45 p.m. he medically examined Mushtaq Ahmad brought by his brother Muhammad Ashraf (accused) and found the following injuries on his person:--
(i) A lacerated fire arm wound of entry with inverted margins 7 mm x 4 mm on anterolateral aspect of lower 1/3rd of right thigh.
(ii) A lacerated fire arm wound of exit with averted margins 5 cm x 4 cm on posterior aspect of lower 1/3rd of right thigh.
On x-rays of right thigh, right femur bone was found fractured. The medical examiner recorded his report Ex. CW 1/A in this regard and proved it at trial.
11. A combined examination of the entire record provides a basis to say with concern at the very outset that the case in hand is a text book example of crude and brute misuse of authority and official position by the two investigators. This is a case of version and counter version and we propose to examine the same in the light of available evidence/material/attending circumstances by placing the counter claims in juxta position. The prosecution version was set up in the F.I.R. by Muhammad Siddique, P.W. 1, a real brother of Muhammad Ramzan, deceased whereas the counter version was introduced by Mushtaq Ahmad, acquitted accused through his statement under Section 342 Cr.P.C. We have examined, scrutinized and analyzed the evidence with full application of judicial/legal mind and would say without fear of contradiction that both the sides did not bring on record honest, true and straight forward version obviously with a motive to minimize their respective role in the occurrence. This is an established and recognized principle governing the subject of appreciation of evidence that in such a situation the Court is not deterred from drawing its own independent inferences from the available evidence and attending circumstances of the case.
12. Muhammad Siddique, complainant asserted in the F.I.R. and deposed at trial that he alongwith his brother Muhammad Ramzan, deceased, Muhammad Mansha, deceased, Boota, Eida and Sharif, P.Ws. was returning home when the accused persons opened attack. The two eye-witnesses attempted to introduce Muhammad Mansha, deceased as their companion. There is cogent and convincing evidence on the file which has repudiated and demolished their above said stance. In fact Muhammad Mansha, deceased was a rival and enemy of the complainant party. This is a matter of record that Muhammad Siddique, complainant, P W. 1, got registered case F.I.R. No, 165 of 1997 under Section 395 P.P.C. at Police Station Kangan Pur, against Muhammad Mansha, deceased and others with an allegation that they snatched a tractor from him at gun point. The available record does not tell nor the two eye-witnesses could explain at trial satisfactorily as to how and under what circumstances two enemies i,e, Muhammad Siddique, complainant and Muhammad Mansha, deceased chose to accompany each other at the relevant time. It does not appeal to reason that Muhammad Mansha, deceased opted to accompany Muhammad Siddique, complainant on 6.6.1998, who had been prosecuting him on the charge of dacoity since 24.5.1997.
13. It is painful to note that kith and kin of Muhammad Mansha, deceased were challaned to Court for his murder Mushtaq and Ashraf accused persons are real brothers inter se. They are sons of Ghulam Nabi, accused Muhammad Shafi, accused is brother-in-law of Ghulam Nabi, accused and is father-in-law of Muhammad Mansha, deceased being the father of his (Muhammad Mansha's) wife Mst. Khalida Bibi. Muhammad Ishaq, appellant is a real brother of the said Mst. Khalida Bibi.
Rafaqat Ali, appellant is also their close relative. In the case in hand Muhammad Siddique, complainant, won the favour of investigating officers and prosecuted the father-in-law, brother- in-law, and other close relatives of Muhammad Mansha, deceased for his murder. The motive set up in the F.I.R. was some land dispute between Ishaq, appellant and Muhammad Ramzan, deceased. Excepting self assertion by the P.Ws. in this regard, no documentary evidence touching the loud dispute, if any, was brought on record during the course of investigation or at trial. For the sake of arguments, if it is admitted for a moment that there was some land dispute between Muhammad Ishaq, appellant and Muhammad Ramzan, deceased a brother of Muhammad Siddique, complainant, then Muhammad Mansha, deceased would have supported the cause of his brother-in-law Muhammad Ishaq, appellant and would not have joined hands with his enemy, Muhammad Siddique. It appears to be ridiculous and unbelievable that Muhammad Siddique, complainant, his brother Muhammad Ramzan, deceased and Muhammad Mansha deceased were on one side while father-in-law, brother-in-law and other close relations of Muhammad Mansha, deceased were on the other side. Mst. Khalida Begum, widow of Muhammad Mansha, deceased and daughter of Muhammad Shafi, accused filed a private complaint (Ex.DB) before the trial Court against Muhammad Sharif and two others with an allegation that they alongwith Muhammad Ramzan, deceased opened attack on her husband, Muhammad Mansha and that during the fight Muhammad Mansha and Muhammad Ramzan, suffered death at the hands of each other while her maternal cousin Mushtaq Ahmad (acquitted accused) received serious- injuries.
14. In the State case, the learned trial Court charge sheeted all the challaned accused persons under Section 148, P.P.C. and under Section 302 read with 149 P.P.C. on two counts, yet on conclusion of trial the convictions and sentences were recorded with reference to individual role of each accused after coming to the conclusion that Muhammad Mansha and Muhammad Ramzan, did not suffer death in prosecution of the common object of the unlawful asseaibly. Had Muhammad Mansha, deceased joined hands with the complainant party as alleged and claimed at trial, the learned trial Court would have convicted the appellants on the charge of murder on two counts holding them vicariously liable for each killing.
15.Mushtaq Ahmad, accused sustained fire arm injuries during the occurrence. He was admitted in the Services Hospital, Lahore in a critical condition. The investigator postponed his arrest. We have examined the entire record, particularly statements of the two investigators and could not understand as to why the Investigating Officers did not take required steps for medical examination of Mushtaq Ahmad, injured accused. The two eye-witnesses concealed and suppressed the injuries of Mushtaq Ahmad, accused during, the course of investigation as well as at trial. However, the SHO, who lastly investigated the case was left with no other option but to admit that Mushtaq Ahmad, accused suffered, fire-arm injuries and that he postponed his arrest in view of his critical condition. However, he was possessed with no explanation or answer as to why he did not get him medically examined. Mushtaq Ahmad; accused was medically examined in Services Hospital, Lahore as a private case. The learned trial Court recorded the statement of medical examiner of the injured accused as court-witness. The injuries on his person could not be and should not be described as self-suffered or caused by friendly hand. At the cost of repetition we must say that as a result of fire-arm injuries right femur bone of Mushtaq Ahmad, accused was fractured. During the course of arguments the learned Law Officer representing the State and the learned counsel appearing on behalf of the complainant were not in a position to say as to why the eye-witnesses and the investigators concealed and suppressed fire-arm injuries on the person of Mushtaq Ahmad, accused during investigation and also at trial.
16. The P.Ws. claimed that the appellants struck Muhammad Mansha, deceased with fire shots. It is the prosecution case that none of the accused persons was armed with sharp edged weapon.
There is no allegation directly or indirectly that any of the accused persons inflicted sharp edged weapon injury to Muhammad Mansha, deceased. The medical examiner and the post-mortem examiner of Muhammad Mansha found incised wound 5 cm x 1 cm on inner side of palm of his left hand. The entire record is silent about this injury. The dimension and the seat of above said sharp edged weapon injury is evidence that some one attacked Muhammad Mansha, deceased with sharp edged weapon when the latter caught blade of the weapon to ward of the attack.
17. The allegation against the appellants herein was that Muhammad Ishaq, appellant fired with .12 bore gun hitting Muhammad Mansha, deceased on left thigh whereas the rifle shot by Rafaqat Ali, appellant struck him on right hip joint. The allegation against the appellants stands rebutted by the medical evidence. The post-mortem examiner did not find the injury attributed to Rafaqat Ali, appellant while conducting autopsy on the dead body of Muhammad Mansha. The learned counsel for the complainant attempted to argue that Dr. Liaqat Ali, P.W. 3 medically examined Muhammad Mansha while being alive and found two fire-arm entry wounds; one on right hip joint attributed to Rafaqat Ali, appellant and the other on the left thigh ascribed to Muhammad Ishaq, appellant, We have minutely examined the medico legal report Ex.PB and the post-mortem report Ex.PD of Muhammad Mansha and would say that Dr. Liaqat Ali, P.W. 3 described the exit wound on right hip joint as an entry wound. The wound on the left thigh was with inverted margins whereas the wound on the right hip joint was with averted margins. According to the medical examiner (P.W.3) there was no exit wound of Injuries No, 1 and 2; which in his opinion were entry wounds. On dissection no foreign body had been seen or recovered. Either, Dr. Liaqat Ali, P.W. 3 did not have adequate knowledge on the subject or he deliberately described the exit wound as entry wound for some consideration extraneous to the record. Be that as it may, it has been established conclusively in the light of post-mortem report, referred to above, that Muhammad Mansha, deceased received only one fire shot causing entry and exit wounds respectively described by the postmortem examiner as Injuries No, 1-A and 1-B.
18. The above discussed state of affairs leads this Court to infer that it was a free fight between two rival groups Muhammad Ramzan, deceased, a brother of Siddique, complainant was on one side while Muhammad Mansha deceased and his cousin Mushtaq Ahmad, injured accused were on the other. Both the deceased persons suffered death at the hands of each other as claimed and alleged by Mst. Khalida Begum widow of Muhammad Mansha, deceased in the complaint. Ex.DB whereas Mushtaq Ahmad, accused sustained fire-arm injuries. The eyewitnesses and the Investigating Officers deliberately and dishonestly attempted to conceal and suppress fire-arm injuries on the person of Mushtaq. Ahmad, accused so that he may not prosecute the killing of Muhammad Mansha as an injured witness. The investigators exonerated Mushtaq Ahmad, accused of the charge dishonestly despite the fact that his presence at the spot at relevant time was not in dispute or disputable. The stem of fire-arm injuries on his person conclusively proved that Mushtaq Ahmad, accused participated in the occurrence and suffered injuries. Eida, father of Muhammad Mansha, deceased was introduced as an eye-witness in the F.I.R. but he was given up at trial on the ground that he was extremely old. Keeping in view the version and counter version it was necessary for the prosecution to produce Eida P.W, at trial. It was the duty of the trial Court to determine and decide as to whether or not Eida P.W. was capable to depose. Apprehending their successful prosecution at the hands of Khalida Begum widow of Muhammad Mansha. deceased, the complainant party compounded the offence of murder of Muhammad Ramzan and got acquitted Muhammad Ashraf, appellant of the charge in terms of compromise but chose to prosecute the alleged killers of their enemy, Muhammad Mansha.
19. For what has been stated above, we are of the considered view that the prosecution completely failed to prove the charge against the appellants herein. We, therefore, accept this appeal, set aside the impugned conviction and sentence and resultantly acquit Muhammad Ishaq and Rafaqat Ali, appellants of the charge. They be set at liberty forthwith, if not required to be detained in any other case.
20.Since the appellants have been acquitted, a therefore, there is no question of enhancement of the compensation. The revision petition is accordingly dismissed in limine.
21. Before parting with this judgment we must bring on record our displeasure over the manner in which the investigation was conducted, by Muhammad Bashir, Sub-Inspector and Khuda Yar Khan.
Inspector/S.H.O. of Police Station Kangan Pur, Distt. Kasur. They played havoc with administration of criminal justice. They joined hands with the complainant party and conducted dishonest investigation obviously for some unholy considerations. In our opinion such like police officials are threat to the system.
22.A copy of this judgment shall be sent to the Inspector General of Police, Punjab, Lahore for initiating necessary proceedings against the above named officials on administrative side. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.