' Sher Zaman (28), Baz Khan (26) and Abdur Rauf (26) were tried for the murder of Ghulam Mustafa. On 12-4-1978 District Sessions Judge, Jhelum, acquitted Abdur Rauf of the charge. Baz Khan and Sher Zaman were convicted under section 302/34, P.P.C. Baz Khan was sentenced to death and Sher Zaman to life imprisonment. This judgment will dispose of the appeal of the convicts and the connected murder reference.
2. About 3/4 years before the occurrence in this case Ghulam Mustafa deceased's nephews Muhammad Azim and Ahmad Khan were murdered by Amir Hussain Shah and otheRs, The deceased pursued that case on behalf of the prosecution while Sher Zaman, accused, pursued the case for defence. Since the accused in that case were convicted, therefore, Sher Zaman bore a grudge against the deceased. This was thus the motive for the crime in this case. Ghulam Mustafa (deceased) was a retired Head Constable. He was running a grossary shop in villge Bhoon. On 5-4- 1976 his wife Mst. Shah Bano accompanied him to village Bhoon because her parents lived in that village. In the evening after closing his shop, the deceased and his wife proceeded towards their village Khaye. On the way near the Bhoon Bus Stand, Muhammad Hussain also joined them and the three proceeded on foot towards their village. When they reached near "Bun Kandiran", Sher Zaman, accused, armed with a Lathi suddenly appeared from the field and raised a Lalkara at Ghulam Mustafa declaring that he would not be allowed to go. In the meanwhile his two companions armed with a rifle and a pistol also appeared on the scene. The names of the two accused have not been mentioned in the F.I.R. though their description was given therein. The one with grey eyes fired with his rifle and the pistol shot was fired by the one who was wearing a Malasia shirt. Pistol shot hit the deceased on the cheek who fell dead at the spot. The assailants directed Mst. Shah Bano and Muhammad Hussain to go back to the village and not to come back till morning. Consequently out of fear Mst. Shah Bano did not go to the police station instead she went to village Khaye. In the morning, she took Tahir Lumbardar with her and proceeded towards Police Station Kallar Kahar but on the way, they met Mukhtar Ahmad, A.S.I. She made statement Exh.P.D. to him at 10-30 a.m. or the basis of which formal F.1.R. Exh.P.D/1 was registered at 11 a.m. at Police Station Kallar Kahar situated at a distance of nine miles from the place of occurrence. P.W.13 Mukhtar Ahmed, A.S.I., went to the spot. He prepared the necessary documents and sent the dead body for its post-mortem examination. He also recorded the supplementary statement of Mst.
Shah Bano (informant).
3. P.W.1 Dr. Asghar Hamid Qureshi, Medical Officer, Civil Hospital Chakwal, held the autopsy on 6-4- 1976 and found the following injuries on the dead body of Ghulam Mustafa:--
(1) A fire-arm wound 2-1/8" x 1" x 7" deep on the right cheek 1-3/8" in front of right ear.
(2) The area around the wound was blackened and scorched. It was going upward and backward and to the left into the cranial cavity. The skull bones had become loose and deformed due to multiple fractures.
' He found hematoma all round the scalp over the skull bones.
' Both vaults of the skull bone and its base were fractured. The brain was destroyed. A deformed bullet and its small piece was removed from the brain which was sealed into a parcel. The stomach was healthy and empty. The large intestine contained stool. Bladder was full of urine.
Death in his opinion was due to injury to the brain and hemorrhage caused by injury No, 1 which was fatal. Death was sudden. Probable time that lapsed between death and post-mortem was about 20 to 24 houRs,
4. P.W.13 Malik Mukhtar, A.S.I. arrested Sher Zaman on 6-4-1976 from the village. On 15-4-1976, he led to the recovery of stick P.8 beneath a heap of Tara Mira which had been piled up behind Sher Zaman's house. It was taken into possession vide memo. Exh.P.F. attested by P.W.5 Muhammad Tahir and Abdur Rahman (given up as unnecessary). P.W.8 Ch. Amir Ahmad, A.S.I./S.H.O., P.S. Kellar Kahar also investigated the case. On 29-4-1976, he arrested Baz Khan accused and on 9-5-1976, while in custody he led to the recovery of revolver P.9 from his house situated in village Khaye. It was lying within the rafter of the ceiling of the cattle-shed. It was made into a sealed parcel vide memo. Exh.P.G. attested by P.W.6 Ghulam Murtaza and Abdur Rehman (given up as unnecessary).
On 31-5-1976, he arrested Abdur Rauf accused. On 12-7-1976, P.W. 13 Malik Mukhtar, A.S.I., made application Exh.P.H before Qazi Habib-ur-Rehman Anjam, Magistrate Section 30, Chakwal for the identification parade of Abdur Rauf accused. P.W.10 Qazi Habib-ur-Rehman Anjam, R.M. Chakwal, held the parade. He recorded accused's objection that he had been shown to the witnesses by the police at the police station. Both Mst. Shah Bano and Muhammad Hussain P.Ws. identified him at the parade. Exh. P.J are identification parade proceedings. After completing the investigation, the accused were sent up for trial.
5. In their statements under section 342, Cr.P.C. all accused denied guilt and said that they have been roped in on account of suspicion and enmity. According to Abdur Rauf, accused, at the time of occurrence he was present in his unit at Jhelum. In support of his defence, he produced D.W.1 Abdul Qayyum, Naib-Subedar, E.M.E. Jhelum, Cantonment, who brought Ration Statement Register, Leave Record Register and Part II Order of 66 Light Infantry Workshop Company E.M.E. in support of Abdur Rauf's plea of alini. The defence witness also identified the initials of his Commanding Officer namely Capt. Ghulam Shabbir. Sher Zaman had tendered certified copy of the order Exh.D.D. dated 28-4-1977 in re: Fatteh Khan v. Raja Khan and a certified copy of decree sheet in the said case Exh.D.E. He also produced a certified copy of judgment Exh.D.F. in re: State v. Noor Dad decided by the Sessions Judge on 22-12-1976.
6. Accepting Abdur Rauf's plea of alibi, trial Court gave him the benefit of doubt and acquitted him.
Relying on the evidence of the two eye-witnesses P.W.9 Muhammad Hussain, P.W. 11 Mst. Shah Bano and the Wajtakar evidence of P.W.
12. Allah Ditta, trial Court came to the conclusion that the prosecution case was satisfactorily proved against Sher Zaman and Baz Khan, appellants. It, however, did not attach any importance to the evidence of motive in this case and observed that in order to prove the guilt of an accused, it was not necessary for the prosecution to prove the motive for the crime beyond reasonable doubt.
It also observed that motive could even be formed at the spur of the moment. These observations show that the trial Court was conscious of prosecution's weakness in not proving the motive for the crime. True, in some cases motive may not be a material circumstance but in a case of this kind where the victim is waylaid by the assailants who laid in ambush, such circumstances speak of pre-concert, premeditation and the obvious query would be what motivated the attack, what grievance the assailants or any one of them had against the deceased or his relations. If there is no previous enmity then was the attack made to rob the victim. In this case, prosecution alleged a motive i.e, 3/4 years before the occurrence, Muhammad Azim and Ahmad Khan nephews of Ghulam Mustafa (deceased) were murdered by Amir Hussain Shah and others and that Sher Zaman, appellant, used to help the accused in the case while Ghulam Mustafa (deceased) was for the prosecution. It has been brought out in the evidence of this case that Niaz Ali father of Sher Zaman accused was murdered by the relations of the murderers of said Muhammad Azim and Ahmad Khan. Under these circumstances, Sher Zaman would be the last person to join hands with them rather he would be on the side of Ghulam Mustafa (deceased). As such the prosecution miserably failed to prove the motive which it alleged; a futile attempt appear to have been made by the prosecution through the evidence of the Wajtakar witness namely, Allah Ditta that one of the accused was searching the pockets of the deceased. This was not the prosecution case in the F.I.R. that the accused wanted to rob the deceased. However, the presence of P.W. 12 Allah Ditta, the Wajtakar witness was a doubtful matter because according to him, he was coming from village Khaye on a cycle and was proceeding to village Bhoon when he heard the gunshots. On the other hand, Mst. Shah Bano and P.W. Muhammad Hussain left the place of occurrence for village Khaye soon after the deceased was shot at but neither Allah Ditta nor the informant and Muhammad Hussain mentioned whether they met each other. This circumstance coupled with the unnatural statement of Allah Ditta makes his presence highly doubtful. He admitted having heard the' gunshots 'yet proceeded near the assailants and the dead body which does not appeal to reason.
It may also be mentioned at this stage that Allah Ditta did not mention about the occurrence to any one yet according to him, the S.I. came to his village and recorded his statement on the following day of the occurrence. Explaining this, Allah Ditta said that since Sher Zaman, accused, during interrogation mentioned his name to the police, therefore, the police came to know about Allah Ditta's presence at the place of occurrence soon after the incident. This appears to be a cooked up story because the Investigating Officer did not mention this fact at all. The recovery effected from Sher Zaman was 10 days after his arrest. It is highly improbable that he would have named Allah Ditta's arrival at the spot.. Further, according to Allah Ditta, he had gone to village Khaye on the day of occurrence at 8 p.m. to work as Mistri in the house of one Ahmad 'Khan. The fact, however, was not mentioned by him in his police statement, wherein he only said that he had gone to village Khaye at Peshiwela. Besides being connected with Mst. Shah Bano analyzed above his evidence even otherwise is not worthy of credit.
7. In so far as the recoveries in this case were concerned, they do not advance the prosecution case. The recovery of stick from Sher Zaman is not said to be blood-stained and is not connected with the crime. Moreover, he was not even alleged to have used it. On the other hand, the bullet recovered from the body of the deceased was sent to the Fire-Arm Expert for comparison with the revolver recovered at the instance of Baz Khan. Fire-Arm Expert's report, dated 28-12-1976 was in the negative. Prosecution withheld this report which is again a circumstance against the prosecution. In dealing with this aspect of the case, trial Court observed that Serologist's report would not indicate that Sher Baz did not commit the offence. Trial Court failed to appreciate the effect of a negative report because it would mean that the weapon alleged to have been recovered from the accused was not the one used at the time of the occurrence. This would undoubtedly adversely reflect on the prosecution case.
8. The sole question for determination in this appeal would be whether the two eye-witnesses namely, Shah Bano and Muhammad Hussain a first cousin of the deceased could be relied upon.
Learned counsel for the appellants contended that it was a blind murder and out of suspicion, the accused have been named. One of the accused namely, Abdul Rauf who successfully proved his alibi, took up this plea during the investigation at the earliest opportunity but the Investigating Officer gave evasive reply to the question as to why he could not contact the commanding officer of this accused. It was also argued that deceased had a number of other enemies and in one of the criminal cases there is one absconder against whose associates the deceased had deposed in Court. True there are circumstances appearing in the evidence of the eye-witnesses which lend support to the aforementioned submissions made by the defence. It may be mentioned at the outset that Mst. Shah Bano (informant) had not mentioned the reason for which she accompanied her husband to village Bhoon. She merely said that her Make was in that village. When cross- examined she admitted that her parents had died and she only had a step-brother in that village.
Had she spent the whole day with her step-brother, it would not have been difficult for the prosecution to produce him to support her statement. Further according to her, when she came back to the village after the occurrence, she raised a hue and cry. Her alarm attracted people who gathered on the roofs of their houses but strangely enough none came near her and she did not narrate her story to any one that night. It was in the morning that she went with P.W.5 Tahir, Labrador for report. On the other hand, Muhammad Hussain P.W.11 stated that they reached the village together but they raised no alarm at all. This was unnatural. A woman whose husband had been murdered on reaching the village would tell one and all what she had been through. The story as put up by both does not inspire confidence. It is difficult to believe that the villagers heard her crying but none asked her as to why she was crying. There is yet another material circumstance which cannot be overlooked i.e, Mst. Shah Bano did not make the report at the police station. It was made to P.W.14 Malik Mukhtar, A.S.I., on the road side whom she accidentally met. In the first statement, she only named Sher Zaman. But as she reached the place of occurrence with the police there, in her supplementary statement for the first time she named Baz Khan accused.
Admittedly, she was accompanied by P.W.5 Tahir, Lumbardar, who did not mention a word about his presence g when Mst. Shah Bano made the report. However, P.W.5 Tahir, Lambardar, admitted that his grandfather Wali Dad and one Said Amir father of Noor Bakhsh and Ahmad Bakhsh were first cousins and the last mentioned two were convicted to life term for the murder of Sher Zaman, accused's father. Undoubtedly, P.W.5 Tahir, Lambardar, is connected with the complainant. These circumstances indicate that after due deliberation Mst. Shah Bano named the accused stage by stage.
The third accused whom she did not name but gave his description only and later identified him in the identification parade was the one who successfully proved his alibi i.e, Abdul Rauf. The accumulative effect of all the above-mentioned circumstances makes the prosecution story doubtful and lends support to the defence argument that none saw the occurrence. Both P.W. 9 Muhammad Hussain and P.W. 11 Mst. Shah Bano said that two shots were fired at the deceased, one by a rifle that missed and the other by pistol which hit him. The one fired by a rifle is attributed to Abdul Rauf, the acquitted accused, he is employed in the Army. For him to have missed the target from a close range was a doubtful matter.
9. The aforementioned are the reasons in support of the short order by means of which the appeal was accepted, conviction and sentence of the appellants was set aside. They were acquitted of the charge and ordered to be released. The other learned member of the Bench has ceased to remain on the Bench.