' Ahmad Yar (20) son of Shana, Azam (22) son of Bati, Nawaz (20) son of Shah Muhammad, Nazra
(20) son of Sultan, all Haral by caste, Dali (30) son of Mehra and Gulla (25) son of Farid, Muslim Sheikh, residents of Ghullapur, were tried by learned Additional Sessions Judge, Sargodha, on the allegation that on 14th September, 1979 at 9 a.m. They formed themselves into an unlawful assembly with the common object of committing the murder of Hayat deceased and in prosecution of the said common object of the unlawful assembly so formed they actually committed the murder of aforesaid Hayat in the area of village Daulatpur, Bakhsha (25) son of Wali, caste Ranjha, resident of Daulatpur, Sultan (35) son of Mahla, and Mutalli (45) son of Salehon, caste Haral, residents of Ghullapur, were tried alongwith them under section 302/109, P.P.C. On the allegation that they hatched a conspiracy for committing the murder of Hayat deceased and Fatta P.W. And instigated their aforementioned co-accused who in pursuance of the said consipracy committed the murder of Hayat. By judgment dated 5th November, 1980 Ahmad Yar was convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs,2,000 or in default in the payment thereof to undergo further rigorous imprisonment for two years. All the remaining accused were, however, acquitted of the charges. Ahmad Yar has challenged his conviction and sentence through this appeal. Sardara complainant filed Criminal Revision No,753 of 1982 praying that the sentence of Ahmad Yar accused be enhanced to death and "the rest of the accused may be taken into custody and be punished under section 302/109/148/149 of the P.P.C. In accordance with law". This petition was ordered to be heard in motion only to consider the question of enhancement of sentence of Ahmad Yar accused. Both these matters shall be disposed of by this judgment.
2. The F.I.R. Version of the occurrence was that six or seven months prior to the occurrence Fateh Muhammad (brother of Hayat deceased) enticed away Mst. Kaniz Bibi,- daughter of Bati. Earlier she had been betrothed with Ahmad Yar accused. Bati aforementioned got a theft case registered against Mst. Kaniz Bibi and Fateh Muhammad and both of them were challaned. The accused persons harboured grudge against Fateh Muhammad due to elopement of Mst. Kaniz Bibi. On 14th September, 1979 Hayat deceased was ploughing land at a distance of three squares from the Dera of his uncle Sardara complainant. His brother Fateh Muhammad P.W. Took Huqqa and Kassi for him. At about 9 a.m. Sardara complainant took breakfast (bread) for both of them. Hayat deceased and Fateh Muhammad .Took the breakfast and when they just got up after having it, Ahmad Yar accused armed with a gun, Nazra, Azam, Nawaz, Dali and Gulla armed with spears came from the south-western side. All of them raised Lalkaras, upon which Ahmad Yar fired a shot hitting Hayat deceased on the right hand. He repeated the fire hitting the deceased in the chest, as a result of which he fell down and died at the spot. Fateh Muhammad P.W. Started running. All the accused chased him but he crossed the Budhsem. On the alarm of the complainant, Bati and Manzur rushed to the spot and saw the occurrence.
' In the F.I.R. It was alleged that aforementioned accused had committed the murder having conspired with Sultan, Bakhsha and Mutalli accused.
' Sardara complainant went to Police Station Midh Ranjha and reported the occurrence to Haq Nawaz, A.S.I., at 10 a.m. Vide F.I.R. Exh.P.G.
3. After recording the F.I.R., Haq Nawaz, A.S.I., reached the spot and prepared the injury statement Exh.P.Q. And inquest report Exh.P.R. Of the dead body of Hayat deceased and sent it to the mortuary for post-mortem examination. He took into possession some blood-stained earth and made the same into a sealed parcel vide memo. Exh. P.N. He secured two empties (Exh. P.13/1-2) and made them into a sealed parcel vide memo. Exh.P.O. He also took into possession pair of shoes Exh.P.8/1-2 vide memo. Exh.P.H. On the same day Abdul Hakeem, S.H.O., took over the investigation from him.
He arrested Ahmad Yar, Nazra, Azam, Nawaz, Dali and Gulla accused on 17th September, 1979 and Bakhsha, Mutalli and Sultan accused on 18th September, 1979. On 20th September, 1979 Dali accused, while in custody, led to the recovery of spear Exh.P.7 from his sugarcane field. The S.H.O.
Took the same into his possession vide memo. Exh.P.E. On the same day Ahmad Yar accused, while in custody, led to the recovery of unlicensed .12 bore gun from a heap of Bhoosa which was made into a sealed parcel vide, memo. Exh. P.D. On 23rd September, 1979 Nazra, Gullah, Azam and Nawaz accused, while in custody, led to the recovery of spears Exhs.P.9, P.10, P.11 and P.12 which were taken into possession vide memos. Exh.P.J., P.K., P.L. And P.M., respectively. During the investigation, Bakhsha, Mutalli and Sultan were found innocent and placed in column No,2 of the challan.
4. On 14th September, 1979 Dr. Mumtaz Ahmad, Medical Officer, Primary Health Centre, Kot Moman, conducted the autopsy on the dead body of Hayat deceased and found the following injuries on it:- (1-A) One firearm wound of entrance, slightly blackened 2 c.m. x 1 c.m. x through and through on front of right hand midway between right little and ring fingers.
(B) Wound of exit 6 c.m. x 4 c.m. Edges everted, on back and middle of right hand, underlying bone (metacarpals under right middle and ring fingers) were found fractured into pieces.
(2-A) One firearm wound of entrance 1 c.m. x 3/4 c.m. x through and through on front and upper third of left upper arm.
(2-B) Wound of exit 11 c.m. x 3/4 c.m. On back and upper third of left upper arm.
(3) Ten firearm wounds of entrance measuring 3/4 c.m. x 3/4 c.m. Chest deep over an area of 19 c.m. x 16 c.m. On front and upper part of chest just above upper end of sternum.
' Under injury No,3 right pleura and lung were found punctured at three places. Right 1st and 3rd ribs at front were fractured. Left pleaura and lung were punctured. Left 1st and 2nd ribs on front and lower end of scapula were fractured. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No,3 which was sufficient to cause death in the ordinary course of nature. Injury No,1 was grievous and No,2 was simple.
5. The prosecution examined three eye-witnesses, namely, Sardara, Fateh Muhammad and Bati. It also relied on the evidence relating to motive and recoveries and the report of firearms expert according to which the crime empties recovered from the spot had been fired from the gun allegedly recovered from Ahmad Yar appellant.
6. The appellant pleaded not guilty to the charge. He admitted that Nazra, Nawaz, Bakhsha, Mutalli, Sultan and Azam accused were related to him. He, however, denied that Mst. Kaniz was engaged with him. He stated that the gun alleged to have been recovered from him was actually supplied by the complainant party and the empties might have been fabricated by the police. He maintained that he had been falsely implicated due to enmity. No evidence was led in defence.
7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the prosecution has failed to bring home the charge under section 302/109, P.P.C. Against Baksha, Mutalli and Sultan and uncorroborated evidence of Sardara and Fateh Muhammad P.Ws. Was not sufficient to warrant the conviction of Azam, Nazra, Nawaz, Gulla and Dali accused. He, therefore, acquitted all the aforementioned eight accused persons. As regards Ahmad Yar, the learned trial Judge was of the view that he was directly connected with the motive and the evidence of the eye- witnesses had the support of medical evidence and recovery of gun at his instance. He, therefore, convicted and sentenced him as mentioned above.
8. The learned counsel for the appellant contends that the prosecution has not been able to prove that Mst. Kaniz was ever engaged to Ahmad Yar appellant; the alleged eye-witnesses, namely, Sardara, Fateh Muhammad and Bati, were inimical towards the appellant and their presence at the spot was not established. He further submitted that the recoveries are fake and the opinion of the firearms expert is not supported by any reason, therefore, the recoveries and the report of expert do not lend any support to the ocular account.
9. The motive alleged by the prosecution was that Mst. Kaniz, sister of acquitted accused Azam, was betrothed with Ahmad Yar appellant; Fateh Muhammad P.W. Developed relations with her and six or seven months prior to the occurrence enticed her away; a case of theft/abduction was registered against Fateh Muhammad and Mst. Kaniz P.Ws. At the instance of her father Bati and it was pending at the time of occurrence. The prosecution version of the motive was supported by Mst. Kaniz and Sardara complainant. Mst. Kaniz is the real sister of acquitted accused Azam. In his statement under section 342, Cr.P.C. He did not deny that Mst. Kaniz contracted marriage with Fateh Muhammad of her own. When asked whether her father had filed a theft case against Mst.
Kaniz and Fateh Muhammad after her elopement, he stated that he had no knowledge about the same. The evidence of Mst. Kaniz, thus, amply shows that she married Fateh Muhammd P.W. Of her own against the wishes of her father and other family members and a theft/ abduction case was registered against her and Fateh Muhammad P.W. At the instance of her father and the same was pending at the time of occurrence. It is thus evident that prior to the occurrence the parties were inimically disposed towards each other. Enmity however cuts both ways. It may be the reason for the attack and at the same time it may persuade a person to falsely implicate his enemies. The prosecution version that prior to her elopement Mst. Kaniz was engaged with Ahmad Yar appellant, is however, not supported by any reliable evidence. Mst. Kaniz asserted having stated before the police that she was engaged with Ahmad Yar accused before she married Fateh Muhammad P.W.
But she was confronted with her statement (copy Exh.D.A.) wherein it was not so recorded. Solitary statement of Sardara complainant who is an interested eye-witness, is not sufficient to hold that Mst. Kaniz was earlier engaged with Ahmad Yar appellant.
10. The prosecution version of the occurrence is supported by Sardara, Fateh Muhammad and Bati P.Ws. Evidence of Bati was not relied upon by the learned trial Judge and he has given cogent reason for discarding the same. The occurrence took place in the area of village Daulatpur. Bati P.W. Claimed that he was also a resident of the same village and was cultivating the land of Sher Ali. He, however, admitted that he was not entered as a tenant in the Khasra Girdawari and was not registered as a voter in the said village. He admitted that he was registered as a voter in village Ghullapur and had exercised his right of vote in the same village in the last Elections. All these facts indicate that he is a resident of village Ghullapur. He is a cousin of the father of the deceased and his sister is married to the brother of the deceased. In this way he is very closely related to the deceased. In view of the evidence on the record, the learned trial Judge has rightly observed that he has shown himself as resident of village Daulatpur just to become an eye-witness.
11. In the F.I.R. The complainant stated that the deceased was fired at when he just got up after taking the meals (bread). At the trial he stated that the deceased had taken bread some minutes before the occurrence. Fateh Muhammad P.W. Also stated that he and the deceased took Lassi and bread and thereafter he deft that place. According to him, he had just covered a distance of 30 Karams when the deceased was fired at. The version that-the deceased was fired at just after taking the meals, does not ring true. The medical evidence shows that the stomach of the deceased contained semi-digested food. The doctor stated that the deceased might have taken his last meals two or three hours before his death, Thus, the statements of Sardara and Fateh P.Ws.
That the deceased was fired at just after taking the breakfast, stand belied by the medical evidence.
' The explanation given by Sardara P.W. For his presence at the spot was that he had taken Lassi and bread for the deceased. The Lassi was taken in a utensil and bread in a piece of cloth (Kandoora). Fateh Muhammad P.W. Claimed to have taken Huqqa for the deceased. Sardara P.W.
Stated that he did not take notice of the Kandoora, utensil and the Huqqa as so many persons had assembled there at the time of the arrival of the police. These articles do not find any mention in the inquest report. The investigating officer admitted that he did not take Huqqa and utensil etc., into his possession. Fateh Muhammad P.W. Stated that the Huqqa, utensil and Kandoora were lying at the spot. He denied that Huqqa was taken to the field by his uncle,Sardara P.W. He was confronted with his statement Exh.D.D. Wherein it was so recorded. The only reason given by Fateh Muhammad P.W. For his presence at the spot was that he had taken Huqqa for the deceased but in his police statement with which he was duly confronted he had stated that his uncle Sardara had taken the Huqqa for the deceased. There is also substance in the contention that if Sardara P.W.
Had taken the breakfast and Lassi for the deceased, the utensil and a piece of cloth would have been found at the place of occurrence.
12. It is important to note that according to the prosecution Mst. Kaniz, sister of acquitted accused Azam, was enticed away by Fateh Muhammad P.W. And he subsequently married her against the wishes of her father and other relatives. If that was the motive, then Fateh Muhammad P.W. Would have been the first target of the accused. In examination-in-chief Fateh Muhammad P.W. Stated that he had taken Huqqa for the deceased and was present with him when Sardara P.W. Brought Lassi and bread for them. After taking the breakfast, he left that place and had covered a distance of thirty Karams when the accused persons came to the spot and challenged the deceased.
Sardara P.W. Also stated that when the deceased was fired at, Fateh Muhammad P.W. Was at a distance of one acre from the spot. He was confronted with the F.I.R. Wherein it was not so recorded. According to the F.I.R., Hayat deceased and Fateh Muhammad P.W. Were together when Ahmad Yar appellant fired first shot at the deceased. The version that Fateh Muhammad P.W. Had gone away to a distance of thirty Karams or one acre after taking the meals, appears to have been introduced to meet the argument that if Fateh Muhammad P.W. Had been present at the spot, the accused would not have spared him. Fateh Muhammad P.W. Stated: "I ran for a distance of four acres in the open before concealing myself in the budh. In the said chase the accused only shouted at me but did not fire any shot". This statement does not at all ring true. The accused had no direct enmity with the deceased. Their grievance was against Fateh Muhammad P.W. And if he had been available at the spot, they would not have spared him. In the circumstances, the presence of Sardara and Fateh Muhammad P.Ws. At the spot is highly doubtful.
13. It is the prosecution's own case that Fateh Muhammad had enticed away Mst. Kaniz and a case registered against both of them at the instance of Bati, father of Mst. Kaniz, was pending. It, therefore, follows that the parties were inimically disposed towards each other. In that view of the matter, the evidence of the alleged eye-witnesses would require corroboration from independent and unimpeachable source.
14. The learned trial Judge did not rely on the evidence of Bati P.W. And so far as Sardara and Fateh Muhammad are concerned he was of the view that "strong and independent corroboration is required to prove their testimony on record". He observed that Ahmad Yar was directly connected with the motive and ocular evidence against him was corroborated by the medical evidence and recovery of gun P.6 at his instance. It has already been observed that the motive alleged against Ahmad Yar has not been substantiated. The medical evidence only shows that the deceased died of a firearm injury. It is not helpful in determining the identity of the person who fired the weapon.
15. The evidence relating to recovery of crime empties and gun at the instance of Ahmad Yar appellant is unsatisfactory. Crime empties do not find any mention in the F.I.R., the inquest report and the site plan. Bati P.W. Is the only witness from the public who supported the recovery of these empties. His statement in regard to the actual occurrence has not been relied upon. The learned trial Judge has observed that he changed his residence from Daulatpur just to become an eye- witness of the occurrence. His evidence in regard to the recovery cannot be accepted. Recovery of gun P.6 is supported by Sarja P.W.5. He is related to the deceased and is resident of Chak Miana situate at a distance of three miles from village Gullapore from where the recovery was allegedly effected. Sarja P.W. Stated that he joined the police from the house of the deceased in village Daulatpur but Abdul Hakim S.I. Stated that Sarja P.W. Joined him in village Gullapore. No independent and disinterested witness from the locality was associated with the recovery proceedings. In the circumstances no reliance can be placed on the evidence relating to recovery of empties and gun P.6.
The report of firearms expert Exh.P.U. Does not show when the crime empties and gun were received in the Forensic Science Laboratory and through whom. The report also does not contain any reason for the opinion of the expert. The evidence of the alleged eye-witnesses against the appellant also remains uncorroborated and is not sufficient to warrant the conviction. It is in the statement of Sardara P.W. That place of occurrence was a deserted place on the bank of a Sem Nullah having reed growth of more than a man's height. In the circumstances possibility of the deceased having been killed by some unknown assailant in the early hours, cannot be ruled out.
16. For the foregoing reasons I allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He is on bail. He is discharged from his bail bond.
17. Criminal Revision No,753 of 1982 automatically fails and is dismissed.