DAVID IQBAL. J. -Sohni, son of Sain, aged 40 years, Bashir alias Gogi, son of Khera 35 years, both Christian, and Muhammad Nawaz, son of Ibrahim, aged 35 years have been convicted under section 302/34, P. P. C. For having cause the murder of Farzand Ali, and sentenced to death ; they have been sentenced to 10 years' R. I each under section 460/34, P, P. C. For having committed lurking house trespass ; and have also been sentenced to 10 years' R. I. Each under section 397/34, P. P. C. For having committed robbery vide judgment dated the 21st of January, 1971, of the Sessions Judge, Lyallpur. The sentences of imprisonment have been ordered to run concurrently but shall be operative only if death sentence was not confirmed. Their appeals (Criminal Appeal No. 69 of 1971 of Sohni and Bashir, and Criminal Appeal No. 70 of 1971 of Nawaz) as well as reference for the confirmation of death sentence are being taken up and disposed of together by this judgment.
2. The occurrence is reported to have taken place at 4-30 a.m. On the 17th of December, 1969, in the house of Farzand Ali in Chak No. 120/J B. In the direction of North and at a distance of two miles from Police Station Nishatabad. District Lyallpur. The F. I. R. (Exh. P. A.) was lodged by Yaqub P. W. 10, son of Farzand Ali deceased on the same day at 6-30 a.m. At Police Station Nishatabad and it was recorded by Mehr Khan A. S. I. P. W. 16.
3. The occurrence is stated to have taken place in the following manner : On the night preceding the occurrence Farzand Ali slept in the portion bf his house which was under construction whereas Yaqub P, W., his son and Mst. Razia Begum P. W 11, his wife were sleeping in the room of the constructed portion. At about 4-30 a.m. In order to keep the Shawal fast Mst. Razia Begum P. W. Got up and went to the adjoining house of Nawab Din, her father, for preparing sehri meals. 1n the meantime three intruders out of which two were armed with guns and one was armed with a knife and an iron sarya entered the room while Yaqub P. W. Was asleep there. They picked up a suit- case full of clothes and went out. Yaqub P. W. Suddenly got up and raised alarm at which Farzand Ali also woke up and caught hold of the one who was carrying the suit case. In order to rescue him, the other two opened fire, but Farzand Ali did not let him get out of his grips. Thereupon, he was given a knife blow which struck him in the abdomen and he fell down. At this stage, Mst. Razia Begum P. W. Alongwith Sharif P. W. 12 and Sher Mohammad (not produced) also arrived there. The three intruders threatened them that if they approached near they would be shot dead. Thereafter, they ran away leaving the suit-case and iron sarya on the spot. There was light of electric bulb in the verandah and courtyard and the P. Ws. Identified the three intruders who were fair- complexioned and had tall and stout figures. Farzand Ali died on the spot.
4. Sohni appellant was arrested on the 22nd of December, 1969, Bashir appellant on the 23rd of December, 1969 and Nawaz appellant on the 5th of January, 1970 by Ch. Farzand Ali S. I. P. W.
15. The relevant recoveries in this case are
(i) 12 bore crime empty P. 9 ; taken into possession from the spot vide memo. Exh. P. D. Dated the 17th of December, 1969 attesting witnesses being Fazal Muhammad (not produced) and Muhammad Shafi P. W. 9;
(ii) 303 bore crime empty P. 10, taken into possession from the spot vide memo Exh. P. E. Dated the 17th of December, 1969 attesting witnesses being the same.
(iii) 12 bore pistol P.
1. Recovered at the instance of Sohni appellant and taken into possession vide memo Exh. P. B., dated the 22 of December, 1969, attesting witnesses being Sharif P. W. 12 and Din Muhammad P. W. 13 ;
(v) '303 bore rifle P. 11 recovered at the instance of Bashir appellant and taken into possession vide memo. Exh. P. M. Dated the 23rd of December, 1969 attesting witnesses being Babu Khan (not produced) and Khushi Muhammad P. W. 14 ; and
(v) Moulds of footprints of the three culprits were also taken from the spot vide memo. Exh. P G , dated the 17th of December, 1969. But this recovery is of no use because Sher Muhammad Tracker according to the statement of Mehr Allah Bux M. I. C., P. W. 3 failed to identify tracks of any of the appellants.
According to the statement of Mohammad Sarwar P. W. 17, Examiner of Fire Arms, 12-bore crime empty P. 9 matched pistol P. 1 and 303 bore crime empty P. 10 matched 303 bore rifle P. 11. (His report to that effect is Exh P. T )
5. Dr. Safdar Ali P. W. I conducted the post-mortem examination on the dead body of Farzand Ali on the 17th of December, 1969 at 3-00 p.m and found these injuries on his person : (1) Fire-arm wound of entry on the left side of abdomen Small intestines were protruding from the wound. 52 pellets and slugs were taken out ; and (2) Contused swelling on the right parietal region of the head. In the scalp a bullet was recovered On the left side of head there was a fire-arm wound of entry brain- deep Both the injuries had been caused with fire--arm. Injury No. (i) was due to gunshot and Injury No. (2) was caused by a bullet. In his opinion the death was due to Injury No. (2) which caused shock, haemorrhage and injury to brain. It was sufficient to cause death in the ordinary course of nature. Injury No. (1) was dangerous to life.
6. The prosecution has produced three eye-witnesses in this case, namely, Yaqub P. W., son of the deceased, Mst. Razia Begum P. W., wife of the deceased and Sharif P. W., brother-in-law of Mst.
Razia Begum P. W.
7. Sohni appellant in his statement before the trial Court denied participation in the occurrence. He disowned pistol P. 1 and stated that he had been involved in this case due to suspicion. He further stated that he was arrested from his village on the 18th of December, 1969, brought to the village of the deceased and kept in the haveli of Fazal lembardar where his tracks and face were shown to the P. Ws. Bashir appellant also denied participation in the occurrence. He disowned rifle P. 11 andnd stated that he had been implicated due to suspicion. He also stated that after his arrest on the 22nd of December, 1969 he was shown to the P. Ws. Nawaz appellant too denied participation in the occurrence. He stated that he had been shown to the P. Ws. And was involved in this case due to suspicion. He further stated that at the time of occurrence he was admitted in D. H. Q. Hospital for fistula in anus. He remained admitted upto the 29th of December, and remained in hospital for the treatment of the same disease during the inquiry of this case Dr Safdar Ali P. W. Had admitted in the cross-examination that the operated upon Nawaz appellant on the 17th of December, 1969, and that he was admitted in the General Ward However, he had stated that a patient of fistula could move about with little difficulty and that it was possible for a patient to slip out from the hospital.
8. The case of the prosecution is based on the ocular testimony of the P. Ws. The recoveries made in this case, the identification of the appellants by the P. Ws. In the identification parade and the medical evidence.
9. We have carefully gone through the record and beard learned counsel for both the sides. In our opinion the prosecution has not succeeded in establishing the guilt of the appellants beyond reasonable doubt. The reasons are : First, in the F. I. R. It is stated by Yaqub P. W. That two of the appellants were armed with guns. In his statements before the trial Court, he had stated that he knew the difference between a gun and d pistol, but since the pistol held by one of the appellants bad a long muzzle, he mistook it as a gun.
We have examined pistol P 1. Its muzzle is about 6" long and it could not possibly be mistaken for a gun. Therefore, either the long muzzled pistol stated to have been used in this case was not recovered or this witness was not certain as to what kind of fire-arm was held by the appellants.
Second, it is stated in the F. I. R. That Farzand Ali was given a knife blow in the abdomen by one of the appellants. In his statement before the trial Court Yaqub P. W., the first informant, stated that no knife was used in the occurrence because the appellants had no knife with them, but this witness made a statement to that effect before the Police because the intestines of the deceased had protruded out and he guessed that he was given a knife blow by the appellants in the abdomen.
According to the medical evidence the deceased did not sustain any knife injury on his person.
Therefore it is doubtful if Yaqub P. W. In fact witnessed the occurrence.
Third, from the account given in the F. I. R. It appears that the deceased was fired at by two appellants and yet he would not release the third appellant until he was given a knife in the abdomen. From this description it seems that the deceased was either not hit by the gunshots of the appellants or the gunshots did not affect him and that it was only on the knife blow being inflicted to his abdomen that he released the third appellant and fell down. According to the medical evidence the bullet injury sustained by the deceased in the bead and the gunshot, injury sustained by him in the abdomen had caused his death immediately. In the circumstances, it is doubtful if the deceased could have kept holding the third appellant after having received two fire- arm injuries. It, there--fore, follows that Yaqub P. W may have not seen the occurrence.
Fourth, according to the eye-witnesses in all two shots were fired at the deceased by two appellants respectively. We have examnied rifle P. 11 and pistol P.
1. Both the weapons of offence are of local manu--facture and do not have an automatic ejecting system. If one cartridge and one bullet was fired from each of them respectively, the empties could not fall out unless of course they were reloaded for firing again by the assailants. According to the medical evidence also two fire- arm injuries had been sustained by the deceased. In the circumstances, it is doubtful if any crime empties were recovered from the spot. If the recovery of crime empties from the place of occurrence was doubtful, then the recoveries of pistol P. 1 and rifle P. 11 from Sohni and Bashir appellants and the evidence of crime empties matching with these weapons was of no use.
Fifth, it is stated in the F. I. R. That the assailants were fair---complexioned, tall and stout bodied.
This description does not tally with the appellants Sohni and Bashir who according to Mehr Khan A.
S. I. P. W. Were black complexioned and short statured as compared to Nawaz appellant. It is, therefore, doubtful if the appellants were in fact seen by the eye-witnesses at the time of occurrence.
Sixth, according to Syed Tajamal Abbas Shah P. W. 2 and Mehr Allah Bux M. I. C. P. W. 3 who held identification parades, the appellants objected before the holding of the parades, that they had already been shown to the witnesses. Nawaz appellant was correctly identified by Yaqub, Mst.
Razia Begum and Sharif P. Ws. Sohni appellant was identified by Yaqub P. W. After ten minutes in the process but he failed to identify Bashir appellant and picked out some one else. Mst. Razia Begum P. W. Identified Sohni and Bashir appellants after two minutes in the process. Sharif P. W.
Correctly identified Sohni appellant but failed to identify Bashir appellant. In the circumstances, it is doubtful if any reliance can be placed on the identification parades.
10. In the light of the above discussion we are of the view that it is doubtful if the occurrence was in fact witnessed by the eye-witnesses. Their statements are materially different from what was stated in the F. I. R. And they appear to have made improvements subsequently In the circumstances the convictions as well as sentences awarded to the appellants were not proper.
We accordingly, set aside their convictions and sentences and acquit the appellants. Their appeals are accepted. They shall be released from jail forthwith if not wanted in any other case.
11. Reference for the confirmation of death sentence awarded to them by the Sessions Judge, Lyallpur, is rejected.