' Khalil-ur-Rehman, his brother Muhammad Sarfraz, another brother Sher Baz, and Gulshan son of Mansabdar, a truck driver, were involved in an occurrence in which Mushtaq Ahmad son of Raja Hashmat Khan was shot. A criminal case was registered against all the accused under sections 307/366 and 452/34, P. P. C. Sher Baz absconded. On 27th January, 1976, injured Mushtaq Ahmad died. 302 was substituted for 307, P. P. C.
' Three of the accused were tried by the learned Additional Sessions Judge, Rawalpindi who by judgment, dated 8th July, 1979 convicted Khalil-ur-Rehman and Muhammad Sarfraz under section 302, P. P. C. And sentenced them to life imprisonment and a fine of Rs, 5,000 each and in default of payment of fine to undergo one year R. I. They were also convicted under section 365, P. P. C. And sentenced to five years' R. I. And a fine of Rs, 5,000 each and in default of payment of fine, to undergo R. I. For six months each. They were further convicted under section 452, P. P. C. And sentenced to five years' R. I. And a fine of Rs, 2,000 each and in default of payment of fine to undergo R. I. For six months. Their sentences were ordered to run concurrently. Gulshan accused was found guilty under section 365, P. P. C. And sentenced to five years' R. I. And a fine of Rs, 2,000 and in default of payment of fine to suffer R. I. For six months. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
2. The convicts have appealed to this Court.
3. The occurrence took place on 19th of January, 1976 in the house of Muhammad Ashraf son of Fateh Khan, resident of Ranial, P. S. Sadar Berooni. The time was 8-30 p. m. Mst. Safia Sultan daughter of Muhammad Ashraf lodged report Exh. P. D. At Police Station Sadar Berooni.
It was Maghrib prayer time. Mst. Safia Sultan, her mother Mst. Feroze Jan and her sister Mst. Ruqia Sultan (hereinafter referred to as Mst. Ruqia) alongwith her two minor children Nadeem Ijaz and Neelam Shahbaz and her first cousin Mushtaq Ahmad were present in the house of Muhammad Ashraf. Mst. Ruqia took her two children to the courtyard for toilet. It was then that Khalil-ur- Rehman, Sher Baz absconder and Muhammad Sarfraz, three real brothers armed with pistols, jumped over the wall of the haveli and came into the courtyard. Khalil-urRehman caught hold of Mst. Ruqia. Muhammad Sarfraz picked up her two minor children. Khalil-ur-Rehman dragged Mst.
Ruqia. She raised alarm. Khalil-ur-Rehman asked his brother Sher Baz to fire at Mushtaq Ahmad who alongwith Mst. Safia Sultan ran towards the courtyard. Sher Baz fired. Mushtaq Ahmad was hit in the right flank. He fell down. The accused party forcibly took away Mst. Ruqia and her two children through a window in the courtyard.
4. The motive for this incident was that Mst. Ruqia was engaged to Mushtaq Ahmad, her cousin the deceased while she was a teenager. In the month of March, 1971, Khalil-ut-Rehman abducted her. A criminal case was registered under section 366 read with sections 147 and 149, P. P. C. Against Khalil-ur-Rehman and others. Khalil-ur-Rehman subsequently married Mst. Ruqia. Two children were born. When the case came to Court, Mst. Ruqia deposed in favour of Khalil-urRehman as a result of which the prosecution collapsed and the matter was dropped.
5. It is alleged that before the incident, Mst. Ruqia alongwith her two children came to live with her parents This was due to strained relations between the spouses. Efforts for reconciliation failed.
However, a condition was put forward by the father of Mst. Ruqia which was that in case Khalil-ur- Rehman was prepared to give his sister in marriage to Mushtaq Ahmad, then Mst. Ruqia could go back to her house. Khalilur-Rehman did not accept this condition. As a result of this the incident took place,
6. According to the prosecution. Mst. Ruqia, her sister Mst. Safia Sultan and their mother Mst. Feroze Jan saw the occurrence. The rest of the evidence consists of dying declaration, medico-legal report and postmortem report of Mushtaq Ahmad and the recovery of Mst. Ruqia from village Jalalabad, District Kohat.
7. The accused denied all the allegations. They pleaded not guilty. Their stance was that they had been falsely implicated. They led no evidence in defence. The statement of Mst. Safia Sultan has already been referred to above, nevertheless as the evidence of the eye-witnesses was read by Mr. Barohi in detail, I shall refer to other relevant portions of her evidence later on.
' Mst. Ruqia is the star witness of the prosecution, but when she entered the witness-box, she shattered the entire prosecution case by stating on oath that when the alleged incident took place she was not present at the place of occurrence. She was present in Sahiwal. She said that she knew nothing about the occurrence.
8. Special Public Prosecutor requested to cross-examine her because she had suppressed the truth. Her statement was contrary to the one recorded under section 164, Cr. P. C. The Court gave permission. She was cross-examined at length by the Special Public Prosecutor and thereafter by the defence counsel.
9. Mst. Feroze Jan is the mother of Mst. Ruqia and Mst. Safia Sultan. She was about 70 years old when she was examined. She said that when Ms:, Ruqia took her two children in the courtyard for toilet, then three brothers scaled over the wall. Came into the courtyard. They were armed with pistols. Khalil-ur-Rehman caught hold of Mst. Ruqia by her arms. Muhammad Sarfraz picked up her two children. Mst. Ruqia raised alarm. Mushtaq Ahmad and Mst. Safia Sultan came into the courtyard. She also followed both of them. When Mst. Safia Sultan and Mushtaq Ahmad came near the accused, Khalil-ur-Rehman asked Sher Baz to fire at Mushtaq Ahmad. He did so, Mushtaq Ahmad was hit. He fell down.
' Rest of her version is the same as given by her daughter Mst. Safia Sultan. However, she deposed that she went after the accused. While she was going out she fell down in the courtyard of one Fazal Dad. She said then the accused party took away Mst. Ruqia and her children in the truck. She could see the truck going. It belonged to Sher Baz. Gulshan was standing near the truck.
10. In this sequence I now turn to the evidence of Meharban Ali Sub-Inspector, Special Branch. He partly investigated the case. He took over investigation after the death of Ch. Muhammad Saeed who was S. H.
0. Police Station, Sadar Berooni.
' On 8th June, 1976 Muhammad Ashraf father of Mst. Ruqia told the Police Officer that Mst. Ruqia and Sher Baz absconder were residing in village Jalalabad, District Kohat. Both could be recovered from there. Two days after i. e. On 10th June, 1976 after obtaining orders from S. S. P. Rawalpindi, the Sub-Inspector alongwith the police guard left for District Kohat. He reached there at 8-00 a. m., the same day. There he got permission of the S. P. To conduct the raid. He was assisted by Moumir Khan Sub-Inspector, S. H.
0. Police Station, Cantt. Kohat who accompanied him. Raid was carried out in the house of Sharif- ud-Din in village Jalalabad. Mst. Ruqia was recovered. She was brought to Rawalpindi. She was produced before Mr. Ghulam Dastgir, Magistrate 1st Class, Rawalpindi who recorded her statement under section 164, Cr. P. C. It was signed by her.
' Enquiry was made by the Police Officer from the doctor regarding the condition of the injured. On 20th January, 1976 the doctor said that his condition was not fit. On 22nd January, 1976, the doctor certified that Mushtaq Ahmad was in a fit condition to make statement. On 27th January, 1976 Mushtaq Ahmad died.
' Dying declaration was recorded by Ch. Muhammad Saeed Sub-Inspector. As he died, Shamim Arshad Constable No, 369, P. S. New Town appeared to identify his handwriting and proved the dying declaration Exh. P. S.
11. On 19th January, 1976 Dr. Agha M. Zafar, Medical Officer, District Headquarters Hospital, Rawalpindi medically examined Mushtaq Ahmad. He noticed a punctured wound 1/4" in diaoeter on back right lumbar region. There was burning of margins of wound. Corresponding hole was present on blood-stained shirt and bunyan. The injury had been caused by fire-arm. It was kept under observation.
' On 27th January, 1976 at 16-00 hours, Lt.-Col. Dr. Karamat Ahmed Karamat, A. M. C. Classified Specialist in Pathology, A. F. I. P. Rawaipindi, conducted autopsy of Mushtaq Ahmad deceased and noticed the following injuries :-
(1) An operation wound starting three fingers below the right costal margin, extending to the right public tubercle.
(2) An oval wound 1/2" x 1/4" just left to the mid abdominal line near the left pubic tubercle.
(3) An oval wound (slightly smaller wound than the above-mentioned) on the back in the posterior axillary line two fingers width below the right renal angle.
' On internal examination, the doctor found the following :-
(1) The peritonium was full of purulent fluid.
(2) There was a hole 1" x 1" in the greater momentum. There were clots of blood on the right side of abdominal cavity.
(3) Stitching on the terminal part of the illium and proximal part of the caecum.
' In the opinion of the doctor, the death was caused due to E. Coli septicemia and peritonitis following bullet injury.
12. Mr. A. K. Brohi, the learned counsel for the appellants argued that the prosecution evidence was not worth relying upon. The entire story was full of doubt. He first attacked the motive and submitted that the spouses were living happily. Two children were born. There were no differences between them. It was the father of Mst. Safia who was inimical towards his daughter and son-in- law. The other two eyewitnesses i,e, his daughter Mst. Safia Sultan and wife Mst. Feroze Jan were under his influence. Therefore, their testimony cannot be taken to be the gospel truth unless it was supported by other independent corroborative evidence. Learned counsel argued that in any case the evidence of two eye-witnesses was not sufficient in law to uphold the conviction.
13. While dealing with the evidence of Mst. Safia Sultan, learned counsel submitted that she admitted that she was illiterate nevertheless she deposed that she noted the number of the truck on the day of occurrence. She also admitted that she could not read alphabet nor could she read digits written in English upto hundred. It was argued that as such it would not be safe to rely on this type of evidence specially when she was an interested witness.
14. Evidence of Mst. Feroze Jan was criticised on the ground that she too was an interested witness.
According to the learned counsel, her presence at spot was highly doubtful. Learned counsel drew my attention to the fact that there was some confusion regarding her statement recorded by the Police under section 161, Cr. P. C. It appears that there were more than one statements because in cross-examination there is reference of original statement on the police file. It was not clear which statement was original. Hence her evidence also becomes very doubtful. It was further submitted that once the ocular evidence goes away, then rest of the evidence did not advance the prosecution case any further. Learned counsel while referring to the dying declaration contended that no reliance could be placed on it because the original was stolen. The prosecution did not lead secondary evidence. The evidence brought on record pertaining to dying declaration was not admissible in law. The same could not be pressed into service by the prosecution. I agree with the learned counsel because this is the correct legal position. Therefore, this piece of evidence shall have to be discarded.
15. Learned counsel appearing on behalf of the State supported the impugned judgment. He argued that the appellants have been rightly convicted. The mere fact that Mst. Ruqia did not support the prosecution case would not mean that the evidence of the remaining two eye- witnesses is also to be discarded straightway.
16. Admittedly the parties were not on cordial terms. Their relations were highly strained. The two eye-witnesses are interested. Their B evidence, before it is believed, must find some support from other independent corroborative evidence.
17. Mst. Safia Sultan in her evidence did not say that her mother also followed the accused whereas Mst. Feroze Jan categorically deposed that she went after the accused and then fell down. Even the testimony of Mst. Feroze Jan is not free from doubt. She admitted that in her statement before the police she said that when the accused party which consisted of three brothers entered the courtyard, they were armed with pistols but when she was confronted with her statement before the police, it was not so recorded. As I have observed earlier, it so appears that her statement under section 161, Cr. P. C. Was twice recorded. I failed to see any reason for that. This must have been done either purposely or shows carelessness on the part of the Investigating Officer as well as the Public Prosecutor but in either case it has damaged the prosecution case.
18. I am, therefore, clear in my mind that in the absence of any independent corroborative evidence it is not safe to accept the evidence of these two eye-witnesses.
19. I have also considered the fact as to whether the remaining evidence i. e. The medical evidence, recovery of Mst. Rugia and the dying declaration could be used as corroborative evidence but I do not think it is so because the dying declaration has already been rejected for the reason given above. The medical evidence vis-a-vis the appellants is not of much help to the prosecution. Even the recovery of Mst. Ruqia would not strengthen the prosecution case because according to her statemen on oath, she was in Sahiwal when the alleged occurrence took place. Meharban Ali Sub- Inspector admitted in his testimony that he was told by father of Mst. Ruqia that she and her brother-in-law Sher Baz were living in the house of Sharif-ud-Din, where the raid was carried out, but the Police Officer did not say anything as to what happened to Sher Baz although according to him he succeeded in recovering Mst. Ruqia.
20. For the foregoing reasons, I am of the view that the prosecution has not been able to prove its case beyond reasonable doubt. The appellants are given the benefit of doubt and acquitted. They are on bail. Their bail bonds shall stand cancelled.
21. While concluding I would like to observe that Sher Baz is absconder. In case he is apprehended and tried, then this judgment shall not give him a "licence for acquittal". The trial Court shall examine his case on its own merits independently of any observations made by me in this judgment.