1. SAJJAD AHMAD, J.-This judgment will dispose of Crimi--nal Appeals Nos. 128 and 129 of 1969, which have been brought by special leave, the first by the appellants Fazal Muhammad and Muhammad Yusuf son of Allah Din and the second by Lai, all of whom along with three others, namely, Khuda Bakhsh, Muhammad and Muhammad Yusuf son of Pir Bakhsh, were accused of having formed an unlawful assembly and in the prosecution of its common object, committed the murder of seven persons and murderous assault on five others and also for having committed rioting armed with deadly weapons at pesh1wela on the 23rd of January 1966, in a street in village Maira Akku within the limits of Police Station Golra in the District of Rawalpindi.
2. Lal appellant was tried separately from the others as he had allegedly absconded after the occurrence and was not arrested until 6-5-1967. The learned Sessions Judge, Rawalpindi, who held the trial of the appellants Fazal Muhammad and Muhammad Yusuf son of Allah Din, and Khuda Bakhsh, Muhammad, Muhammad Yusuf son of Pir Bakhsh, acquitted the latter three, but convicted Fazal Muhammad and Muhammad Yusuf appellants under section 302/34, P. P. C. (seven counts) with a sentence of death on each count. He also convicted them under sections 307/34, P. P. C. And sentenced them to seven years' rigorous imprisonment on each of the five counts under that section. The sentences of imprisonment were made to run concurrently. Their appeal to the High Court was dismissed. In the subsequent trial of Lai appellant held by Mr. K. Z. Durrani, ex officio Additional Sessions Judge, Rawalpindi, he was found guilty under sections 148, 302/ 149, P. P. C.
3. (seven counts) and section 307/149, P. P. C., (five counts) with a sentence of death on each count of murder and transportation for life on each count under sections 307/149, P. P. C. He was additionally sentenced to three years' rigorous imprisonment under section 148, P. P. C. His appeal to the High Court was dismissed and his convictions and sentences were affirmed. Before proceeding, any further, a patent anomaly in the judgments of the Courts below needs to be noted. In the trial of the accused persons other than Lai, it was held that no unlawful assembly was constituted between the accused, including Lai. The charges of unlawful assembly and rioting thus failed against them because of the elimination of three of the accused persons who were acquitted of the charge, the number of the participants in the crime being reduced to less than five. Yusuf and Fazal Muhammad appellants were in the result convicted on each count of murder and attempted murder under sections 302 and 307, P. P. C. Read with section 34, P. P. C. On appeal and reference (Criminal Appeal No. 239 of 1967 and Murder Reference No. 84 of 1967), a Division Bench of the High Court upheld the view of the trial Judge by its judgment dated the 31st of January 1969.
4. Curiously enough, notwithstanding this result of the earlier trial; in the subsequent trial of Lai appellant which proceeded on the same facts and evidence as had the first trial of his co- accused, the trial Judge Mr. K. Z. Durrani, ex officio Additional Sessions Judge, Rawalpindi, reached a contrary conclusion that an unlawful assembly was constituted between him and his co-accused and that they committed rioting with deadly weapons. He convicted Lai under section 148, P. P. C.
5. And also for each of the various counts of murder and attem--pted murder by applying section 149, P. P. C. It seems that he had either not cared to read the judgments of the trial Judge and the High Court in the earlier trial or he did not comprehend their legal implication. The plain effect of the previous trial of the accused persons was that they had been acquitted of the charge of having formed an unlawful assembly along with Lal accused. In the subsequent trial, by holding that Lal was a member of an unlawful assembly constituted between him and his co-accused, Mr. Durrani virtually revived a dead charge thus seeking to undo the acquittal on that charge of the co- accused of Lai which, as stated above, had been confirmed by the High Court. Again while sentencing Lal to transportation for life on each count under section 307/149, P. P. C. Mr. Durrani failed to appreciate that his co-accused namely, Fazal Muhammad and Yusuf had been given seven years each for the same offence by another learned Sessions Judge which sentences had been confirmed by the High Court. This glaring disproportion in the sentence of Lal compared with that of his co-accused for the same offence is obviously violative of judicial equanimity.
6. Unfortunately, the learned Judges in the High Court fell into the same error and affirmed the convictions and sentences of Lal without caring to notice that they had themselves on the very same date (31-1-1969) while disposing of the connected appeal of Fazal Muhammad and Yusuf upheld the finding reached by the trial Judge in the earlier trial, namely, that no unlawful assembly was constituted between them and Lal accused. Again, in affirming Lal's sentence of transpor-- tation for life, on each of the counts under section 307/149, P. P. C., they failed to notice the gaping difference between his sentence and the one which they had affirmed in the case of Fazal Muhammad and Yusuf, his co-accused in the con--nected appeal which they had disposed of the same day.
7. To revert to the facts of the case, it seems that this gruesome tragedy was enacted on account of previous enmity between the parties. One and a half months before the occurrence, Muhammad Yunus, a brother of Muhammad Yusuf (acquitted accused) had been beaten by Sadiq, one of the deceased persons in this case, and some others, who were being prosecuted in a criminal Court. It was also alleged that Lal appellant had suspected an illicit relationship between his daughter and Akram of the complainant party who was one of the persons injured in this incident.
8. The prosecution case, in brief, was that Sadiq deceased who had come back from Golra Railway Station, was passing in front of the house of Lal appellant on way to his own house in the same street, when the three appellants and the acquitted accused tried to attack him. He took to his heels raising an uproar which attracted Muhammad Nazir, Shah Wali, Riaz, Afsar, Ghulam Rasul, Akram, Mansahdar and Gulam Muhammad P. Ws., from their houses, into the street. The three appellants, in the meanwhile got on the roof of the kotha of Gulab, brother of Lal appellant, which lies across the street parallel to the house of Lai, from where they opened fire. The acquitted accused who were in the lane armed with lathis started pelting stones. The three appellants resorted to indiscriminate firing killing instantly Sadiq, Riaz, Shah Wali, Ghulam Rasul, Mustafa and Mst. Khalida. Ghulam Muhammad who was also injured by the shots, died the next day. The firing also hit P. Ws., Nazir son of Faiz Zaman, Nazir son of Shah Wali, Afsar, Mehrban and Yaqub. Three other persons namely, Mst. Razia, Mst. Zubaida and Muhammad Akram had also sustained firearm injuries at the time at the hands of appellant, but they were not produced at the trial as prosecution witnesses.
9. The first report was made by P. W. Mansahdar at 4 p.m. To Raja Ghulam Sarwar, Sub-Inspector, who was on patrol duty in village Maira Jaffar which is situated at a distance of one mile from the place of occurrence in village Maira Akku. In the F. I. R. He charged the appellants and the acquitted accused, for the grief caused to the complainant party and named the witnesses who had seen the occurrence. He also mentioned the motive for the offence which has already been described above. This furnished the foundation for the prosecution case, which according to the contention of Mr. A. K. Brohi, the learned counsel for Lal appellant, was not truly laid in the manner as alleged by the prosecu--tion. He has submitted that the F. I. R. Was recorded after some preliminary investigation had been carried out at the spot. In this connection, he has referred us to the state-- ment of P: W. 3, Muhammad Akbar, Foot Constable, before the committing Magistrate, with which he was confronted at the trial and wherein he had stated that he and the Sub-Inspector had gone straight to the spot from the Police Station. The contradiction in the statements .Of Raja Ghulam Sarwar, the Investigating Officer, and P. W. 9, Qureshi Naematullah, re--garding the movements of the former on the day of the occurrence, is significant. Qureshi Naematullah stated that he and the Sub-Inspector had left the Police Station for patrol in Maira Jaffar, Dareh Mori and the vicinity of Golra Mor. Raja Ghulam Sarwar, on the contrary, denied that Qureshi Naematullah was his companion on the patrol duty at Maira Jaffar on that day. These contradictions in the statements of the police officials create a very serious doubt about the claim of the prosecution that the F. I. R: was recorded at village Maira Jaffar. In fact, P. W. 18, Muhammad Nazir had admitted in the course of his statement that the report of Mansahdar was recorded by the Sub-Inspector at the site.
10. The seven persons who were killed in this occurrence, namely, Muhammad Sadiq, Ghulam Rasul, Shah Wali, Riaz Mustafa, Mst. Khalida and Ghulam Muhammad, belonged to one family and were closely inter-related. Similarly, P. Ws., 17-21, viz. Muhammad Yaqub, Muhammad Nazir; Afsar, Nazir son of Faiz Zaman and Mehrban who were injured, are related inter se and also with the deceased persons. The only other person who was examined at the trial as an eye-witness was Mansahdar, the first informant, who is just as intimately related to the deceased as to the other P. Ws. The trial Judge has held that the evidence of these witnesses on which the fate of the case hinges, is quite convincing and clear, in that they cannot be discredited because of their relationship with the deceased. This finding has been reached without a critical analysis of the evidence. The learned Judges in the High Court in their judgment have recounted several sore points between P. W.
11. Mansahdar and the accused-party and have observed that "in view of the enmities admitted by this witness it is not possible to place implicit faith in his words". They have nonetheless considered that the evidence of Mansahdar finds corroboration from a number of other wit--nesses ignoring that the other witnesses equally suffered from the taint of relationship and interestedness for the prosecu--tion and could not have, therefore, added any strength to the evidence of Mansahdar.
12. But, as pointed out by Mr. A. K. Brohi I, the real question to be considered is whether the version of these interested witnesses does not contain inherent improbabi--lities and whether it fits in with the pattern of the crime which can be pieced together from the physical circumstances of the occurrence. According to the prosecution case, the main target of the attack was Sadiq deceased who, however, managed to escape in the first instance in spite of the con--frontation in the lane between him and the six accused persons armed with deadly weapons. While he managed to escape from their clutches, a chase is given to him, but he does not come to any harm until three of the accused persons, i.e. The appellants before us ascended the roof of the kotha of Gulab and opened fire from there. This story is very unnatural to induce conviction. Again, it seems highly improb--able as alleged by the, prosecution that the other deceased c persons and the injured P.
13. Ws., came to the spot in the street from their houses to the rescue of Sadiq to face the indis-- criminate volleys of shots which were being fired from the roof top of Gulab's house to fell one by one from the firing that continued. The autopsy of the deceased persons was done by Dr. Muhammad Azhar who was at the relevant time posted in the District Headquarters Hospital, Rawalpindi. In the trial of the appellants Fazal Muhammad, Muhammad Yusuf and the three acquitted accused, the statement of this doctor which had been recorded by the committing Magistrate, was trans--ferred to the Sessions record under section 509 of the. Criminal Procedure Code: In the second trial of Lal appellant, as this witness was not available, the post-mortem reports of the deceased persons prepared by him, were proved by the evidence of one, Muhammad Habib, who had worked as a dispenser with him and who stated that he could identify his handwriting. Mr. A. K. Brohi contended that no sufficient evidence was led to prove the non- availability of the doctor or that his attendance could not be procured without an amount of unreasonable delay or expense. On this point, all that the prosecution managed to establish from the evidence of Muhammad Habib was that Dr. Azbar had left the country since' the year 1966, but on cross-examination, he said that he had left Rawalpindi from Zafarwal on transfer and he did not know where he went afterwards. The post-mortem reports prepared by Dr. Muhammad Azhar could be admitted into evidence under section 32 (2) of the Evidence Act, being statements which he had prepared in the discharge of his professional duty, provided it was shown that the witness could not 'be found or' his attendance could not be procured without unreasonable delay or expense. This requirement of law was not adequately satisfied in this case. However, in the earlier trial to which Lal was a party in absentia having been declared an absconder, the evidence of this witness which had been recorded by the committing Magistrate was regularly brought on the record. This evidence given in the earlier judicial proceedings could also be utilized in the subsequent trial against Lal under section 33 of the Evidence Act, which permits the use of such evidence in the subsequent judicial proceeding, provided it is shown that the presence of the witness concerned cannot be obtained without an un-reasonable amount of delay or expense.
14. According to the Explanation added to this section, a criminal trial or inquiry is to be deemed to be a proceed--ing between the prosecutor and the accused within the meaning of this section. The evidence of Dr. Azhar in the first trial could also be made use of against Lal under section 512 of the Criminal Procedure Code. The prosecution itself has relied on the post-mortem reports of this witness at the trial of Lal, by proving those reports by secondary evidence. This evidence therefore can be validly examined in both the appeals to test the result which it yields in favour of the prosecution or the defence. One significant point which the defence has made from this medical statement isthat the firearm injuries suffered by the deceased persons could not have been caused to them if the assailants .Were at the roof-top, 11 feet above the ground, firing at their victims down in the street. For instance, there was a circular wound of entrance on the upper part of the left thigh of Mst. Khalida with an exit wound of left thigh in the upper part. Similarly, on the body of Muhammad Sadiq there was a circular wound of entrance on the right `temporal' region and an exit wound on the left temporal region. The post-mortem result of Mustafa deceased showed that he had a circular wound of entrance on the upper part of left thigh on lateral' side and a wound of exit on the left side of abdomen in left iliac fossa near the iliac crest. These injuries would clearly indicate that so far as Mst. Khalida and Muhammad Sadiq were concerned, they were fired at from a parallel angle while Mustafa was fired at by someone who was at a lower pitch than himself because the projectile in his case traveled from down up--wards entering his thigh and finding its exit in the abdomen. These injuries could not have been caused to them by someone firing from above at a higher level.
15. One circumstance of which no explanation has been furnished by the prosecution, is that from the side of the accused party Khuda Bakhsh, one of the acquitted accused, his nephews Fazal Ilahi and Qadir Bakhsh and his daughter Mst. Khudeja, were also injured. The first three had sustained lacerated wounds which were stated to have been caused by blunt weapons. The last-mentioned, Mst. Khudeja, had received a circular wound with inverted and lacerated margins of the left side of the outer margin of the abdomen with a corres--ponding outlet wound. This was definitely a firearm injury, which shows that there was a confrontation between the two parties in which both sides resorted to violence and exchange of fire. The suppression of this material circum--stance by the prosecution and failure to explain how the persons from the accused party received these injuries, casts a further doubt on the veracity of the prosecution story. There is no corroboration worth the name in support of the prosecution evidence which, as stated above, suffers from partisanship and inherent improbabilities. As against Lal appellant, his alleged ascendance was sought to be used as corrobo--rative evidence of the charge against him as Lal had led defence evidence consisting of D. Ws. Khanan Khan and Badshah Mir who stated that he was in Darra Adam Khel working in an arms factory since long before the occurrence and that he had consistently remained at Darra Adam Khel without any break for a visit to his home village. This evidence has been disbelieved by the Courts below because no register was produced to show the attendance of Lal in the factory on the day of occurrence. We think the defence evidence merited a more serious consideration and should not have been summarily discarded on the consideration that no register of attendance was produced in, proof of Lal's presence in the factory on the day of occurrence. These factories are not run on conventional modern business lines nor are they subject to legal regulations to raise a legitimate demand that they should maintain a register to mark the daily attendance of their employees.
16. As the prosecution, case suffers from inherent defects and the evidence in support of it fails to inspire confidence, a serious doubt pervades the whole case, of which the benefit must go to the appellants. We accept both the appeals and acquit the appellants. They shall be released forthwith if not wanted in any other case.