Muhammad Afzal Cheema, J.--The five appellants, Fateh Slier (59), his son Falak Sher (37), Gaman
(32) and Zaraan (31), sister's sons of Fateh Sher, and Ahmad Khan paternal aunt's son of Zaman and Gaman aforesaid, were tried along with three acquitted accused namely Alam Sher, brother of Fateh Sher appellant, his son Ahmad Khan and Fateh Muhammad, brother of Ahmad Khan appellant, for the murder of Khan Muhammad an old man of 65 and for having made a murderous assault on Mehar Khan complainant P. W. 9, nephew of Khan Muhammad deceased. They were convicted under section 148, P. P. C. with an award of two years' R. I. each, under section 307/149, P.
P. C. with an award of seven years' R. I. each, and under section 302/149, P. P. C. with an award of sentence of death to all except Ahmad Khan who was sentenced to transportation for life. They have appealed against their convictions and sentences and the case of the first four appellants has also been referred to us under section 374, Cr, P. C. for the confirmation of the sentence of death. This judgment will dispose of the appeal as well as the Murder Reference.
The time of the occurrence was rather vaguely described as khuftanwela on the 14th of May 1967, near the house of one Dost Muhammad shown in site plan Exh. P. L.
2. The facts as set out in the initial report Exh. P. A. made by Mehar Khan complainant at Police Station Gunjial, three furlongs from the scene of occurrence briefly are that a day previous to the occurrence Ghulam Muhammad, a first cousin of Mehar Khan complainant and nephew of Khan Muhammad deceased, who was initially included in the calendar of witnesses as a prosecution witness, but was given up as having been won over, was surprised by Ahmad Khan son of Alam Sher, one of the acquitted accused, in his house in a compromising position with the latter's wife. It is in evidence that Ghulam Muhammad aforesaid while making good his escape left his shot-gun, bandolier containing some live cartridges, a chadar and a pair of shoes at the spot. He informed Khan Muhammad deceased about this incident whereupon the latter accompanied by his son Sher Muhammad P. W. 11, his nephew Mehar Khan P. W. 9, Zuti Khan P. W. 10, along with Yar Muhammad, father of Zuti Khan, also was not examined as a witness on account of his old age and infirmity, visited the house of Alam Sher on the 14th of May 1967, some time after sunset in order to apologise for the immorality of Ghulam Muhammad. They found Alam Sher, his son Ahmad Khan, Fateh Muhammad son of Sultan present in the house of Alam Sher. They apologised but Alam Sher was not in a mood to accept the apology and wanted time to consider the matter further as it involved the question of his honour. At this, Mehar Khan P. W., the deceased and their companions left the house of Alam Sher for their own hamlet. It was about khuftan prayer time. Although it was the third of the lunar month the night was stated to be moonlit. On its way back as the party approached the house of Dost Muhammad suddenly live accused of whom Fateh Sher, Falak Slier, Gaman and Zarnan wielded guns while Ahmad Khan had a hatchet emerged from the opposite direction. Gaman challenged that they would not be spared. Khan Muhammad deceased raised his right hand requesting them to listen while Falak Sher fired at him hitting him on the right wrist, followed by Gaman, hitting him in the chest. Khan Muhammad fell to the ground. Fateh Sher fired a second shot hitting Mehar Khan complainant on the right arm followed by Zaman hitting him on the left shoulder. They tried to run away but all the five appellants started firing at them indiscriminately. One of the shots hit Mehar Khan complainant in the back on the left side. In the meantime, the three acquitted accused, Alam Sher, his son Ahmad Khan and Fateh Muhammad, brother of Ahmad Khan appellant, who had been left by them in the house of Alam Sher also rushed to the spot saying that the complainant party should not be spared. Many people reached the scene of occurrence, when all the eight accused including five appellants ran away. Khan Muhammad succumbed to the injuries at the spot. Mehar Khan then repaired to the Police Station Gunjial, three furlongs away, and lodged the report which was recorded by Mohd. Sana Ullah A. S. I., P. W. l2. He prepared the injury statement Exh. P. G. of Mehar Khan and sent him to the hospital for medical examination with F. C. Muhammad Hayat. The A. S. I. also recorded the statement of Yar Muhammad who accompanied Mehar Khan to the Police Station. Since none of the senior officers happened to be present at the Police Station the A. S. I. himself repaired to the spot reaching there at 10-25 p.m. He found the dead body of Khan Muhammad lying at point No. 1 shown in site plan Exh. P. L., prepared his inquest report Exh. P. H. and injury statement Exh. P. H./l and despatched the dead body to the mortuary for post-mortem examination under the escort of F. C. Rehmat Ali P. W.
4. He secured blood-stained earth from the spot vide memo. Exh. P. B. recorded the statements of the remaining eye-witnesses and stayed there for the night. On the next morning on his return from mortuary Foot Constable Rehmat Ali produced before him the clothes of the deceased, Dhoti Exh. P.
2, shirt Exh. P. 3, as also a pair of chappals. Exh. P. 4, which were taken into possession vide memo.
Exh. P. F. Foot Constable Muhammad Hayat P. W., on his return from the hospital also produced before him bloodstained shirt of Mehar Khan complainant (Exh. P. 5) which was taken into possession vide memo. Exh. P. J.
Towards evening, on the arrival of Muhammad Anwar Khan, A. S. I., P. W. 6, the investigation was handed over to him and Muhammcd Sana Ullah A. S. I. himself returned to the Police Station bringing along with him the sealed parcels. Muhammad Anwar Khan A. S. I. arrested Fateh Sher, Falak Sher, Gaman, and Zaman on the 19th of May 1967, who had voluntarily appeared before him.
It appears that on a repersenta- tion made to the Superintendent of Police by the accused party that the local police was trying to rope in four innocent persons namely, Alam Sher, his son Ahmad Khan and Fateh Muhammad and Muhammad Zainan, the Superintendent of Police deputed Mr. Hafeezur-ur-Rehman, D. S. P. for further investigation of the case who placed the aforesaid four persons in column No. 2. However, in the final challan the name of Muhammad Zaman was again transported from column No. 2 to column No. 3 at the instance of the P. D. S. P. presumably for the reason that he was mentioned as one of the four gunmen who had allegedly fired at the complainant and the deceased. Mehar Khan complainant produced a "l2 bore shot-gun Exh. P. 1, and a bandolier containing some live cartridges and a pair of chappals which Ghulain Muhammad had left at the spot when he was surprised by Ahmad Khan in the latter's house. These articles were secured by the D. S. P. vide memo. Exh. P. Q. and Ghulam Muhammad was sent up in a separate case under section 13 of the Arms Ordinance.
3. Mehar Khan P. W. was medically examined by Dr. Muhammad Saeed-ur-Rehman P. W. 1 on the 14th of May 1967, at about 10-30 p.m. vide his medico-legal report Exh. P. E. the doctor found the following injuries on his person :--
(1) A gunshot wound of entrance, 1/8" x 1/8", going deep in the muscle placed on the lateral surface on the right arm five inches below the shoulder-joint. The edges of the wound were inverted, bruised and lacerated.
(2) A gunshot wound of entrance, 1/8" x 1/8", going deep in the muscle on the flexor surface of the left forearm, 3j* below the medical epicoldile of humerus. The edges of the wound were inverted, bruised and lacerated.
(3) A superficial glancing wound, 3" x 1/4" x 1/2" on the left side of the posterior abdominal wall, 1J" lateral to the mid-line of the back and just below the 12th rib. The edges were bruised and lacerated.
The blood-stained shirt of Mehar Khan bore corresponding holes and was handed over to the police. On the 21st of May 1967, the doctor operated upon Mehar Khan and extracted some pellets which were handed over to the police in a sealed bottle Exh. P. 6 and were secured vide memo. Exh.
P. K. The injuries were caused by a firearm within three hours. The doctor opined that injuries Nos. 1 and 2 could be the result of one shot while No. 3 could be the result of a separate shot. He stated that the shot had been fired from a distance of more than l2 feet. He could not, however, deny or admit the suggestion that the shots were fired from a probable distance of fifteen yards.
4. Post-mortem examination of the dead body of Khan Muhammad deceased was conducted by Dr. Shahid Hussain Bukhari P. W. 7 on the 15th of May at 10-30 a.m. vide his post-mortem report Exh. p.m. the doctor found the following injuries on the body :--
(1) A lacerated wound, 2"x 3/4" on the front of right side of chest in the nipple area. The wound was entrance of the projectile.
(2) A lacerated wound, l/3"xl/3" on the right side of chest, 1|" above injury No. 1. The wound was the entrance of projectiles.
(3) A lacerated wound, 1/3'x 1/3" on the right side of chest, 3/4' above and medial injury No. 1.
(4) An abrasion, 3/4'x 1/4', on the front of chest, 3' below the superasternal notch.
(5) A lacerated wound, 4J"x4Jj', on the interior aspect of right forearm, 3/4" above right wrist-joint.
The wound was the exit by projectile. The bone underneath was fractured.
(6) A lacerated wound, If" x 1/2' on the dorsum of right forearm near the wrist-joint. The wound was the entrance of projectile.
(7) A lacerated wound, !J"x 1/3" on the dorsum of the right forearm, 3/4" medial to injury No. 6.
(8) An abrasion, l/2"x 1/3" on the dorsum of left little linger near the root of nail.
(9) Four gunshot wounds of exit in an area 3|"xl|" on the back of right {side,7, of the chest, I V' below the inferior angle of right scapula. The measurements of the wounds were 1/3" x 1/4", l/4"x 1/2", 1/2" X 1/4" and 1/2" x 1/8".
On internal examination, the doctor found that muscles and pleura at the sites of injuries Nos. 1, 2, 3 and 9 were ruptured. The fourth and sixth right ribs were fractured underneath injuries Nos. L 2 and
3. Right lung was ruptured in its middle and lower lobe. Pericardium and heart were healthy and empty. Diaphragm was punctured at the right side. Small and large intestines were healthy and contained faecal matter. Liver was ruptured at its superior surface in its right lobe. Urinary bladder was healthy and full of urine. Right radius and ulna bones were fractured at the site of injury No. 5.
In the opiniou of the doctor, death had occurred due to shock and haemorrhage as .a result of injuries Nos. 1, 2 and 3 which were grievous and dangerous and as such individually and collectively sufficient to cause death in the ordinary course of nature. Injury No. 5 was also grievous. Injuries Nos. 4 and 8 were simple abrasions and could possibly be caused by a fall. According to the doctor the deceased had taken rice a couple of hours before he met his death. The doctor also staled that injury No. 5 was an exit wound of injuries Nos. 6 and 7, both having been caused by single shot, and injury No. 9 was the exit wound of injuries Nos. 1, 2 and 3.
5. It appears that notwithstanding the fact that Alam Slier, Falak Sher, Ahmad Khan, and Fateh Slier were placed in column No. 2, the order of committal made no distinction in their favour and as such all the eight accused, including the live appellants were sent up to stand trial before the Sessions Judge.
6. The prosecution case rested at the trial on the evidence of motive, the ocular testimony of Mehar Khan P. W. 9, Zuti Khan P. W. 10 and Slier Khan P. W. 11 and the medical evidence. Although the licensed gun Exh. P. 1 of Fateh Slier appellant was taken into prossession by the police vide memo.
Exh. P. C. on the 19th of May 1967, yet it could not supply the missing link or serve the purpose of corroboration in the absence of any connecting piece of evidence.
Except this, there were no incriminating recoveries.
7. The case of the appellants was more or less one of bare denial. No specific plea was raised in support of their protestation of innocence. Of course, it was suggested to the P. Ws. during cross- examination that the deceased had several enemies in the village including Dost Muhammad near whose house the occurrence had taken place and that some unidentified assailants had killed him and injured Mehar Khan complainant under cover of darkness.
8. Learned counsel for the appellants contended before us firstly that the initial report had been recorded at the spot after some preliminary investigation and as such it would be devoid of all sanctity which would be normally attached to spontaneous and unembellished version revealed in an initial report lodged with promptitude ; secondly that the alleged motive did not stand established beyond doubt ; thirdly that besides suffering from some inherent infirmities, the prosecution version came into direct conflict with ocular evidence which rendered it incredibly false ; and fourthly that although the occurrence took place in the midst of a populous habitation yet the prosecution could only lay its hands on three interested witnesses whose testimony remained conspicuously uncorroborated.
9. We see considerable force in these contentions. At the outset, we would like to take note of some of the glaring features of the prosecution case which have attracted our notice at the outset, (i) In the first instance, we find that although in the initial report the parts attributed to Alam Sher, Ahmad Khan and Fateh Sher, the three acquitted accused, who admittedly arrived subsequently, was confined merely to an exhortation yet *t the trial a positive improvement was made by the prosecution witnesses, except Sher Muhammad P. W. 11 including Mehar Khan complainant, by placing guns in their hands and attributing participation in the alleged indiscriminate firing. While on the one hand, such a material improvement would strongly militate against the credibility of the witnesses, it would further highlight the conflict of their testimony with the medical evidence particularly when not a single empty was recovered at the spot. () The next important feature of the case which would tend to lend considerable support to the contention that the report was recorded, at the spot after some preliminary investigation, is the significant insistence of Mehar Khan at the trial that he went to Police Station Gunjial while Khan Muhammad was still alive. He categorically stated in his examination-in-chief. The death of Khan Muhammad was not in my knowledge when I lodged the report. Actually it came to my knowledge when the police visited the place of occurrence and found Khan Muhammad to be lying dead there." This would only demonstrate that falsehood has not only shaky legs but also has poor memory, (iff) The third patent fact worth noting is that the nature and number of injuries sustained by the deceased and Mehar Khan complainant is by nc means consistent with the allegations of indiscriminate firing at the hands of seven gunmen which position would be further negative* by the conspicuous absence of a single empty at the spot particularly when the police reached there within minutes of the occurrence, (iv) Next there is the equally untenable insistence of the prosecution witnesses that it was the 11th or 12th of the lunar month which position is completely falsified by a reference to the calendar according to which it was the 3rd of Safar. It is surprising that in their keenness to justify identification of the assailants in moonlight the prosecution witnesses have either ignorantly or conveniently forgotten that they could be belied by the calendar, (r) Lastly, it cannot be disputed that the testimony of the three eye-witnesses, who are not only closely related- to the deceased but have also shown palpable adjiistibility in their statements as it suits their convenience, is completely devoid of any corroboration whatsoever, on which the Court would insist in the circumstance of the case in which four of the accused, including one appellant were found innocent by the police and of whom three were acquitted at the trial.
10. The learned Assistant Advocate-General was at pains to point out that in view of the relationship of the P. Ws. with the accused party the former had deliberately, though very cleverly, manoeuvred to make discrepant and inconsistent statements by introducing some improvements on the one hand and making conspicuous improvements on the other, with a view to help out the accused and since they had by and large tried to support the prosecution version, they could not be declared hostile and allowed to be cross-examined by the public prosecutor. It was submitted that Yar Muhammad, father of Zuti Khan P. W. was given up on the pretext of being old and infirm, while Ghulam Muhammad, his brother, who had started the whole mischief, was given up as having been won over. He had to concede that the accounts of the occurrence given by Mehar Khan and Zuti Khan were rather discrepant, that Mehar Khan had deliberately made two departures from the first information report, one about the death of Khan Muhammad, who, according to the F. I. R., had already expired while according to the statements at the trial was still alive, as also in the matter of active participation of Alam Sher, Ahmad Khan and Fateh Muhammad who arrived subsequently. Learned Assistant Advocate-General had also to concede that the insistence of this witness that it was the 11th or 12th of the lunar month, was also a patent and indefensible lie as according to the calendar it was the 3rd of the month of Safar. It, was, however, contended that the version, as given by Sher Muhammad P. W. 11, was by and large correct and should be iccepted. [1] of this "additional firing" that he received the grazing injury in the back. Ahmad Khan appellant, whose presence or participation appears to be doubtful from the outset and who once was placed by the police in column No. 2 having been found innocent, raised only a lalkara and never used his hatchet. Even the so-called lalkara was introduced at a very late stage at the trial' not having been mentioned even before the committing Magistrate. Despite his insistence on the sufficiency of light the inescapable fact that it was rather dark was extracted from him during cross-examination. In answer to a Court-question he stated that he could not give direction from which Alam Sher, Fateh Muhammad and Ahmad Khan fired as "the reason- is that it was night time." Earlier, when questioned as to whether any of the guns was re-loaded he stated : "I did not notice whether any bandooq was re-loaded since the occurrence took place at night time." Zuti Khan P. W. 10 admitted in cross- examination that he could not identify the persons who had collected at the spot and had intervened and rescued them. Even if we proceed on the assumption that at the relevant time the moon was still in the sky though low in the horizon the established range of visibility from a distance of 45 feet as indicated by the site plan would render the recognition extremely doubtful as identification in full bright moon would not be possible beyond 36 feet. The point sought to be emphasised on behalf of the State in effect was that by making departures from the correct position the prosecution witnesses or at least two of them, namely, Mehar Khan and Zuti Khan, had deliberately tried to help out the accused and as such this Court should try to separate the grain from the chaff. We are afraid that in view of the foregoing discussion we find it all chaff and chaff and hardly any grain therein. To start with, the basic infirmity in the prosecution case is that while the alleged motive directly involved the question of the honour of Alam Sher and that of his son Ahmad Khan, whose wife was found in a compromising position with Ghulain Muhammad, both father and son not only received the members of the complainant party in then house but also listened to them for more than two hours, am asked for time before they could give their final verdict regardin; the acceptance or rejection of the apology tendered b them, and as such we would not be surprised that if in view c the admitted enmity of the complainant party with other perSor in the village including Dost Muhammad they had been attacke by some unidentified assailants from near the house of the latte It does not stand to reason, therefore, that their other relation who were not as directly concerned as Alam Sher and Ahm; Khan aforesaid, should have felt more insulted and conspir to attack the deceased and the P. Ws. -The prosecution cr bristles with a host of doubtful circumstances, including t palpable implication of innocent persons in a case of nij occurrence. The evidence of the P. Ws. finds no corroborat whatever from any source. l2, Asa result of the above discussion, we allow this app set aside the convictions and sentences of the appellants acquit them. The sentences of death are not confirmed. The] appellants shall be released from jail forthwith if they are not required in any other case. I .