BASHIRUDDIN AHMAD, J.-Eight persons, namely, Bahadur (52), Shera 132), Aslam (27), Walayat (32), inayat (35), Yousaf (37), Ishaq (40) and Muhammad Khan (30) were tried for offences under sections 148, 302,/149 and 307/149, P. P. C. By the Additional Sessions .Fudge, Gujrat, who convicted and sentenced them as below :- Bahadur to suffer death for the murder of Zaman and the rest to transportation for life under 'section 302,/149, P. P. C; to undergo rigorous imprisonment for to years each under section 307/149, P. P. C. And to undergo rigorous imprisonment for one year each, under section 148, P. P. C.
The sentences were ordered to run concurrently in case of all the accused except that the sentence of imprisonment passed on Bahadur was to take effect in the event of his death sentence being not confirmed by this Court.
2. The convicted persons appealed and the case is also before us, on reference under section 374, Cr. P. C. So far as Bahadur is concerned for confirmation of the death sentence. Ghulam Husain filed Criminal Revision No. 339 of 1969 for enhancement of sentences of the accused other than Bahadur from transportation for life to death. The revision petition was admitted to a regular hearing by a Division Bench on 22-4-1969. We propose to dispose of the appeal, revision petition and the reference by a single judgment.
3. Shera and Bahadur accused are .Real brothers. Aslam accused is the son of Bahadur accused.
Yousaf and Bahadur accused are first-cousins. Walayat and Inayat accused are real brothers. Mst.
Fazal Begum, a sister of Bahadur, is married to Walayat accused. Muhammad Ishaq and Muhammad Khan accused are real brothers. Mst. Fazal Begum, a niece of Walayat and Inayat accused is married to Muhammad Ishaq accused. A sister of Muhammad Ishaq is married to Muhammad Aslam who is the nephew of Walayat and Inayat accused. This is the relationship inter se between various accused.
4. Fifteen or twenty years ago, Abbas, a paternal uncle of Mushtaq Ahmad complainant, was put to death by Bahadur and Yousaf abused and his relatives. Four or five years ago, Phalu, a brother of Bahadur accused was killed at Railway Station Lakhanwala, by Muhammad Khan and others, who belonged to the complainant party. The accused openly declared that Muhammad Zaman got Phallu killed and that they would take revenge from Muhammad Zaman deceased.
In the last elections to the Provincial Assembly, Muhammad Iqbal and Mian Muhammad Aslam Kolianwala contested the election from Gujrat District as rival candidates. The complainant party supported Muhammad Aslam. The, accused persons supported the party of Muhammad Iqbal.
Muhammad Iqbal won the election as against Mian Muhammad Aslam Kolianwala. These facts constitute the motive.
5. On May 20, 1965, at about 7-30 a.m., Mushtaq Ahmad, his father Muhammad Zaman deceased, Muhammad Khan, Muhammad Siddique, Mian Khan and Fateh Khan P. Ws., who were facing a trial in the Court of Malik Muhammad Azim, Magistrate Ist Class, Gujrat, on a charge-of theft, came to the house of Mian Muhammad Aslam Kolianwala from village Dhakranwali and-tethered their horses there. The party then started towards the District Courts and as they reached in front of the bungalow of Muhammad Iqbal, the eight accused, namely, Bahadur, Shera, Aslam, Yousaf, Inayat, Walayat, Ishaq and Muhammad Khan emerged out of the western gate of the bungalow of Muhammad Iqbal. Ishaq and Muhammad Khan accused were armed with pistols, while their companions carried rifles. Bahadur shouted a lalkara and fired a shot with the rifle which hit Muhammad Zaman on the right flank. Muhammad Zaman stagger--ed to some distance. Aslam, Inayat and Yousaf accused fired at him with the rifles while Muhammad Ishaq and Muhammad Khan accused started firing towards him with their pistols. Some of the shots hit Muhammad Zaman, who fell to the ground. Shera and Walayat accused fired at Mushtaq Ahmad, Mian Khan, Siddique and Muhammad Khan P. Ws. With their rifles. They took refuge behind the pardah wall of the house of Mian Muhammad Ashraf, Advocate and thus saved themselves. After the tragedy had been enacted, the assailants again entered the house of Muhammad Iqbal from the eastern gate taking alongwith them their respective weapons. Mushtaq Ahmad and his companions then went near Muhammad Zaman and found him dead.
6. Leaving Mian Khan and others to guard the dead body. Mushtaq Ahmad proceeded to Saddar Police Station at a- distance of 1-- furlongs from the scene of crime and reaching there at 7-45 a.m. Lodged the report Exh. P. A.
After scribing the report, A. S. I., Abdul Hakeem went to the spot, prepared the injury-sheet and the inquest-report and then despatched the dead body to the mortuary for post-mortem examination.
He took into possession blood-stained earth from the spot and made it into a sealed parcel. He recovered lead pieces of bullets, Exhs. P. 1/1-3 from the wall of the Income-tax Office and made them into a sealed parcel. On May 29, 1965, Bahadur accused, while in custody, led to the recovery of rifle Exh. P.
2. From a pond near the Serves Shoe Company. It was taken into possession by the police in the presence of Fateh Alam (P. W. 11) and Muhammad Sharif (P. W. 12). It may be stated here that the recovery of rifle, Exh. P. 2, in no way advanced the prosecution, case because no empty was recovered and the rifle was not sent to the Ballistics Expert for examination and opinion.
Bahadur, Shera, Walayat and Inayat accused were arrested on 21-5-1965. Muhammad Aslam came to be apprehended by the police on June 4, 1965. Yousaf was arrested by Inspector Razi-- ud-Din on May 24, 1965. Muhammad Ishaq and Muhammad Khan accused were- found innocent and were not put under arrest.
7. Dr. Ghulam Sarwar (P. W. 1), on May 20, 1965 at 4-30 p. m., performed post-mortem examination on the dead body of Muhammad Zaman, and found the following injuries:-
(1) A lacerated wound 1--" x --" x brain matter deep. Brain matter was coming out of the wound.
The margins of the wound were inverted and there was no blackening or scorching around the wound. Wound of entry on the right temple.
(2) A lacerated wound 4' x 1" brain matter deep. Brain matter and pieces of bone were coming out of the wound Margins of the wound were everted. (Wound of exit) on the left temple.
(3) A lacerated wound --" x --" on the left side of the neck with margins inverted and no blackening or scorching around the wound of entry.
(4) A lacerated wound 1--" X --" on the right side of the neck upper part, below the right ear. The margins of the wound were everted and there was no blackening or scorching around the wound (Wound of exit).
(5) A lacerated wound --" x --V with margins inverted on the back part of right arm upper part (Wound of entry).
(6) A lacerated wound 1--" x 1--V with margins everted on the left chest upper part. (Wound of exit).
(7) Multiple abrasion of sizes varying from --" x --" to --" x --" on the right knee.
Death, according to the doctor, occurred due to laceration of brain, lungs and heart and comminuted fracture of the skull.
8. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity, but denied that they belonged to the party of Muhammad Iqbal. Defence evidence was not called.
9. At the trial, Mushtaq Ahmad (P. W. 14), Mian Khan (P. W. 15), Siddique (P. W. 16) and Muhammad Khan (P: W. 17), furnished direct evidence. The substance of their evidence is that they along with the deceased were facing a trial in the Court of Malik Muhammad Azim, Magistrate 1st Class, Gujrat, the case had been fixed on May 20, 1965, and all of them started together from village Dhakranwali at the the of the call to the morning prayer on horses to attend the Court at Gujrat. On reaching Gujrak, they first went to the house of Mian Muhammad Aslam of Kolianwala and tethered their horses there. Thereafter, they started towards the District Courts at about 7-30 a.m. When they reached in front of the bungalow of Muhammad Iqbal, M. P. A., the eight accused emerged out of the western gate of the bungalow of Muhammad Iqbal. Muhammad Ishaq and Muhammad Khan accused were armed with pistols, while the remaining accused carried rifles. On coming out of the bungalow of Muhammad Iqbal, M. P. A., Bahadar accused raised a Lalkara and fired a shot with the rifle, which hit Muhammad Zaman deceased on his right flank. Muhammad Zaman staggered to some distance. Aslam, Inayat and Yousaf started firing towards the deceased with rifles while Ishaq and Muhammad Khan fired .At Muhammad Zaman with their pistols. Sonic of the shots hit Muhammad Zaman, who fell down to the ground. Shera and Walayat accused started firing with the rifles at Mushtaq Ahmad, Mian Khan, Siddique and Muhammad Khan, who took cover behind a pardah wall and were not hit.
After the occurrence, the assailants entered the house of Muhammad Iqbal; M. P. A. Mushtaq and his companions then went up to Muhammad Zaman and found him dead.
10. The trial Judge held that the presence of, Mushtaq Ahmad, Mian Khan, Siddique and Muhammad Khan on the spot at the the of the occurrence was proved and considering the as natural witnesses, decided to, rely on their evidence not with-standing the fact that all of them belonged to the rival party of the accused and proceeded to convict the appellants.
11. For the appellants, it was strenuously argued that the conviction was improper inasmuch as it was based on evidence, which is not oily of partisan nature, but also inimical and no corrobora-- tion of this evidence from an independent source was forth-- coming so as to remove all possibility about false implication of the accused. There is substance in the argument which must prevail.
Allahdad was the grandfather of Mushtaq Ahmad complainant. Fateh Khan was his real brother.
Hakam Ali is the son of Fateh Khan. Mst. Noor Begum is married to Hakam Ali, a paternal uncle of the complainant. She is the daughter of Sultan Ali. Fateh Khan P. W. Is the son of Sultan Ali. Shaft is the real brother of the deceased: He is married to Mst. Jainan. The deceased was married to a sister of Hakam Ali. Rehmat Khan and Ahmad Khan are the brothers of Fateh Khan P. W. Siddique and Sardara are brothers.
There has been admitted enmity between the parties. It is in the statement of the complainant that 15 or 20. Years before the occurrence, under consideration, his paternal uncle Abba was put to death by Bahadur and Yousaf accused and his relatives. Four or five years before the present occurrence, Phallu, a brother of Bahadur, was killed at Lakhanwala Railway Station by Muhammad Khan and others, who belonged to the party of the complainant. The accused openly declared that Muhammad Zaman got Phallu killed. It is also in the statement of the complainant that the last election to the Provincial Assembly was contested by Muhammad Iqbal and Mian Muhammad Aslam Kolianwala as rival candidates. The complainant and his witnesses belonged to the party of Mian Muhammad Aslam Kolianwala and they openly supported him against Muhammad Iqbal.
The accused persons belonged to the party of Muhammad Iqbal and he won the election against Mian Muhammad Aslam Kolianwala. Ghulam Hussain, who was called as the 9th witness for the prosecution is the real brother of Muhammad Zaman deceased. He admitted that Feroze Khan, Khan Dauran and Fateh Khan were his paternal uncles. Walayat Khan was the son of Feroze Khan and Ghulam Abbas was his brother: Ghulam Abbas was murdered and Walayat Khan had a case registered against Bahadur, Yousaf and Shera accused. Their fathers and uncles were also accused in that case. Ghulam Hussain tried to suppress the truth when he stated that he was unable to name .The prosecution witnesses who gave evidence against Bahadur, Yousaf, Shera and others in that case. The accused in that case were acquitted. . It is also in the statement of Ghulam Husain that Ahmad Khan, son-in-law of his brother Muhammad Khan was put to death.
The witness deliberately avoided to tell the truth when he stated that he was unable to say which of the accused of the present case were challaned for the murder of Ahmad Khan. Ghulam Husain admitted that those who were challaned for the murder of Ahmad Khan included some of the accused of the present case. Ghulam Husain admitted further that a murder was committed at Okara in which Muhammad Zaman deceased was involved, but was acquitted. We have it in the evidence of Muhammad Khan P. W. That he was 114 challaned for the murder of Shera son of Rehmdad. Sardar sra Khan was co-accused with him. Lal was a prosecution witness against, them in that case. Muhammad Khan, admitted in his statement before the committing Magistrate that Mian Lal of Banian is a relation of Yousaf, Bahadur and Inayat accused.
There has been a clear attempt on the part of witnesses to suppress their relationship inter se and in this connection, a reference to the statement of Muhammad Khan in cross-examina--tion seems to be necessary. Muhammad Khan expressed ignorance if Pola was his maternal grandfather. The witness admitted that- Shaft is the real brother of the deceased. He repelled the suggestion that Mst. Sardar Begum, who is a daughter of his maternal uncle Gehna, is married to Shafi. Again said, he was not aware if she is married to Shaft. The witness expressed ignorance if Gaman son of Fateh Ali is the nephew of aforesaid Pola. Muhammad Khan denied that Mst. Fatima daughter of Fatta is married to Gaman son of Fateh Ali or that the wife of Gaman is the first-cousin of Mian Khan P. W. Muhammad Khan was constrained to, admit that Mst. Noor Begum daughter of Sultan Ali is the sister of Fateh Khan P. W. She is the wife of Hakam Ali son of Fateh Khan, and Hakam Ali is the first-cousin of Muhammad Zaman deceased. Anwar is the son of the paternal uncle of Zaman deceased.
12. There are material contradictions in the evidence of witnesses, who claimed to have seen the fatal assault on the deceased. It is in the statement of Mushtaq Ahmad complainant that Bahadur accused fired a rifle shot which hit his father Muhammad Zaman deceased on the upper side of his right wakhi. Muhammad Zaman staggered to some distance. Aslam, Inayat and Yousaf accused started firing towards Muhammad Zaman, deceased with their rifles, while Ishaq and Muhammad Khan accused fired at him with their pistols. Some of these shots also hit Muhammad Zaman deceased and he fell to the ground. The deceased had no injury on his right wakhi. He had only three gun-shot injuries. Six persons were attributed firing at the deceased by the complainant, as he found six injuries and was unable to distinguish between wounds of entry and exit. He implicated six persons .For the shots fired at the victim, as he counted six wounds on his person.
Mushtaq Ahmad stated in the complaint against Muhammad Ishaq and Muhammad Khan that after the receipt of the gun shot injury at the hands of Bahadur; the deceased bad fallen down, he got up again and the remaining shots were fired at him after he had got up. Mian Khan said in his statement that Aslam and Yousaf fired at the deceased with rifles, while Muhammad Khan and Ishaq fired at him with pistols and that to shots out of those fires hit Muhammad Zaman deceased and he fell down near the house of Muhammad Ashraf, Advocate. It appears-that the witness by this the had realised that the injuries on the person of the deceased were the result of three and not six shots as they included an equal number of exit wounds. The witness, therefore, stated that to shots out of those fired by Aslam and Yousaf with rifles and Mohd. Khan and Muhammad Ishaq with pistols had actually hit Muhammad Zaman deceased. It was impossible in the situation in Which the witness was placed to have correctly noticed which of the shots fired had actually hit Muhammad Zaman deceased. Mian Khan stated in cross-examination that Zaman deceased was ahead of them. His statement to the police was to the contrary. He stated to the police that he alongwith Siddique, Muhammad Khan, Fateh Khan and Mushtaq Ahmad was going ahead and that Muhammad Zaman was behind them and somewhat towards the south. The witness resiled from this statement and in order to be in a position to see the assault on the deceased said that Zaman deceased was going ahead of them. Mian Khan did not state before the police that besides the shot fired by Bahadur. Accused, to more shots hit the deceased as a result of firing by Yousaf, Aslam, Inayat, Muhammad Khan and Ishaq. In his preliminary statement in the complaint, Mian Khan nowhere said that Muhammad Zaman deceased was hit in the right flank by the shot fired by Bahadur. Similarly, Siddique had said in his statement that Zaman deceased was going a little ahead of them towards the south. He stated before the committing Magistrate that he alongwith the other P. Ws. Was going ahead and Muhammad Zaman deceased was following them a little towards the. South when the attack was opened. He did not state to the police that the shot fired by Bahadur hit the deceased in the right, flank. Muhammad Khan deposed that Muhammad Zaman deceased was going a little ahead of them when he was fired at by Bahadur accused. The witness stated to the police that they were going ahead and Muhammad Zaman deceased was following.
Them. He told the police that when the accused uttered a lalkara, he looked behind. The witness also failed to mention in the police statement that some of the shots fired by Muhammad Aslam and others collectively hit the deceased. These improvements in the statements of witnesses strengthen the suspicion in our minds that they were not present when Muhammad Zaman was shot dead.
13. We are called upon to believe that notwithstanding the firing by a large body of accused persons at Mushtaq Ahmad, Mian Khan, Siddique and Muhammad Khan P. Ws. Not one of them received any injury, they had a miraculous escape because all of them succeeded in taking shelter behind a wall of the house of Muhammad Ashraf, Advocate. Had the witnesses been present at the the of the occurrence, as alleged by them, and firing had been .Done by the accused from a short distance, not all of them could' have come out unscathed. We, therefore, doubt the presence of the so-called eye-witnesses on the -spot at the the of the occurrence.
14. In view of the medical evidence, it is not possible to believe that the deceased came from his village to Gujrat on the morning of the fateful day, because the doctor who conducted the post- mortem examination, found that the deceased had not yet evacuated. Had Muhammad Zaman come all the way to Gujrat on horse back from his village, as alleged by the prosecution witness, then in that event there should- have been no faecal matter in the large intestines of the deceased. The suggestion by the defence that Muhammad Zaman had come to Gujrat on v the previous evening and had gone out for the purpose of nature when he was shot at and killed cannot be held to be wholly without foundation.
15. Notwithstanding the circumstance that the occurrence took place at the crossing of the roads, which is not far away from the District Courts at Gujrat, the prosecution was unable to produce a single disinterested witness in support of their case. The ocular evidence being of partisan nature, the rule of caution demanded that the trial Judge should have looked for its corrobora--tion from independent source, but the learned Judge failed to consider whether it was safe to convict a large number of persons on evidence of witnesses who belonged to the rival party of the accused.
16. The recovery of the rifle, Exh. P. 2 of Bahadur accuses was believed by the trial Judge in view of the evidence of Fateh Alam and Muhammad Sharif besides the investigating officer, but the recovery, by itself; is not sufficient to prove that the rifle, Exh. P. 2, was used, in perpetrating the crime, because no empty had been recovered from the spot and the lead pieces of bullets recovered from the wall of the Income-tax Office were not sent with the rife to the Ballistics Expert for examination and opinion.
17. The police had found, as a result of investigation, that Muhammad Ishaq and Muhammad Than accused were innocent. They had been falsely implicated. The conclusion was arrived at by Inspector Razi-ud-Din Haider (C. W. 1), who. Examined a number of respectable persons and although Muhammad Ishaq and Muhammad Khan .Had failed to produce those persons in their defence, still the trial Court was not justified incoming to a finding that there was a combined effort on the part of the investigating agency as well as the committing Magistrate to save them.
18. Mushtaq Ahmad and others including his father Muhammad Zaman deceased were accused of theft of a horse belonging ---to one Bhalla, who is the father-in-law of Shera accused and in that very case, they had come to appear as accused persons in the Court of Malik Muhammad Azim, Magistrate 1st Class. This is borne out from the statement of his Reader, who was called as the witness for the prosecution. The possibility about Shera, who had appeared as a witness against them or for the matter of that even Bahadur, his real brother, having been implicated in the case falsely could not be excluded to moral certainty.
19. It is in evidence that the assailants after perpetrating the crime had entered the bungalow of Muhammad Iqbal, but curiously enough the police did not search for them, nor made any effort to recover the weapons of offence from them immediately after the occurrence.
20. Since the evidence in the case is highly of partisan nature and there is no independent corroboration forthcoming of this evidence against the accused from an unimpeachable source, we consider it not safe to maintain their conviction and the sentences. The possibility about one or more accused having been falsely implicated in the case cannot be ruled out to a moral certainty.
The complainant threw his net to wide and the prosecution is to thank itself if any really guilty person has escaped with the innocent. We, accordingly, accept the appeal; set aside the conviction and sentences passed on the appellants and order them to be acquitted. They are in jail and we direct that they be set at liberty forthwith, provided always that they are not required in connection with any other case. The sentence of death passed on Bahadur is not confirmed.
21. Since we have accepted the appeal, the revision petition for enhancement of the sentences fails ipso facto and is dismissed.