1. SALAHUDDIN AHMED, J.-The first three appellants are represented by Mr. M. Saleem, Advocate and the rest by Manzur Qadir, Advocate.
2. The appellants have been convicted under section 302 read with section 149 of the Pakistan Penal Code on two counts, and while appellant No. 1, Mohammad Aslam has been sentenced to death on each count, each the other five appellants have been sentenced on each count to transportation for life, and a fine of Rs. 5,001, and in default of payment thereof, to undergo further rigorous imprisonment for five years each. All the appellants have been also convicted under section 307/ 149 of the Code and each of them sentenced to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs. 1,000, in default to under--go further rigorous imprisonment for a period of one year each. All the appellants have been further convicted under section 143 of the Code and each of them sentenced to suffer rigorous imprisonment for two years.
3. On appeal and reference before the High Court the conviction and sentences passed upon the appellants were maintained and the sentences of death passed upon appellant Mohammad Aslam on two counts were confirmed. The learned Judges of the High Court also dismissed a revision petition for the enhancement of the sentences imposed upon the appellants other than Mohammad Aslam under section 302 read with section 149, P. P. C.
4. The facts of the case relevant for the purpose of the disposal of the appeal may be stated thus; A few hours -previous to the actual occurrence on the 13th November 1967, Sadiq deceased had beaten appellant Mohammad Sharif in the afternoon. The same day at about sunset P. W.
5. Mohammad Ramzan was present in his baithak at Chak No. 66-JB, along with Sadiq deceased and P. Ws. Rehmatullah (P. W. 14), Ibrahim (P. W. 15) and Mohammad Amin (P. W. 13). The appellants appeared in the lane outside the baithak of P. W. Ramzan and challenged him, and said that the former had come to avenge themselves by killing Sadiq who had beaten appellant Mohammad Sharif. Appellants Mohammad Aslam and Yousaf were armed with pistols and the rest of the appellants with guns. At the suggestion of P. W. Mohammad Ramzan, Mohammad Sadiq deceased came out of the baithak to ask forgiveness on behalf of himself and P. W. Ramzan, and P. W.
6. Mohammad Amin accompanied Mohammad Sadiq on this mission. Mohammad Sadiq deceased and P. W. Mohammad Amin had hardly uttered a sentence when the appellants opened fire hitting both Mohammad Sadiq and Mohammad Amin. Both the victims fell down, and P. W. Mohammad Ramzan immediately closed the door of his baithak. In the meantime Bashir deceased, who lived in the vicinity, appeared on the scene and reprimanded the appellants whereupon appellant Mohammad Aslam fired at Bashir deceased. The other appellants too fired at him. Bashir fell down on being hit by Mohammad Aslam. P. W. Mohammad Ramzan took out his revolver from inside an Almirah in his baithak, and fired from there five shots at the assailants through the window of his baithak, resulting in injuries to appellants Fazal Mohammad and Kamal Din. The assailants then went to the house of Ghafoor and Sharif, about 100 or 120 feet away from P. W. Ramzan's baithak, and continued firing at the house of P. W. Mohammad Ramzan throughout the night. When the firing ceased at about morning prayer time, on the 14th November 1967, P. W. Mohammad Ramzan came out of his baithak, and found both Sadiq and Bashir dead, and P. W. Mohammad Amin lying injured. P. W. Mohammad Amin was sent to the District Headquarters Hospital, Lyallpur and P. W.
7. Ramzan left for Thikriwala Police Station, six miles away from the place of occurrence for lodging information, but on reaching the Police Station he was informed that the Sub-Inspector had gone to Chak No. 58/J. B. Mohammad Ramzan then went to Chak No. 58/J.B. Via Lyallpur and reached there at about 5 a. m. After having covered a distance of 19 miles on a scooter. He lodged the statement Exb. P. A. To P. W. 18, Sub-Inspector Noor Hussain. The Sub-Inspector sent the statement to the Police Station for registration of the case, and himself proceeded to the place of occurrence, and arrived there at 7 a.m. The Sub-Inspector took into possession blood-stained earth from two places, namely ; the places where the two dead bodies of Mohammad Sadiq and Bashir lay. On the same day, i.e. 14th November 1967, P. W. Ramzan produced his licensed revolver Exh. P. 2 and his licence Exh. P. 3 and they were taken into possession by the Police. Appellants Mohammad Aslam and Yousaf were arrested on the 22nd November 1967, and the former produced his licensed revolver, Exh. P. 6 and his licence and they were taken into possession by the Police. P. W. Sharif was arrested on the 29th of November 1967. Appellant Yousaf was arrested on 22-11-1967 and he took the Police to his house and produced a 12 bore pistol, Exh. P. 1 and it was seized by the Police.
8. Appellants Fazal Muhammad and Kamal Din were arrested on 14-11-1967 and the former led to the recovery of gun, Exh. P. 4 from his kitchen, and it was seized by the Police. 1t may be stated here that inasmuch as no empties were recovered from the place of occurrence the recovery of the pistol, Exh. P. 1 and the gun, Exh. P. 4 was not of much assistance to the prosecution. It may also be mentioned here that not a single pellet was recovered from the place of occurrence nor the empties of P. W. Mohammad Ramzan's revolver were produced before the investigation officer although the evidence has disclosed that P. W. Mohammad Ramzan had a six chambered revolver, and it had been re-loaded by P. W. Ramzan at the time the revolver was used against the appellants. The post-mortem examinations on the dead bodies of Bashir and Sadiq deceased were held on the 14th November 1967, in the afternoon and it disclosed one gun-shot wound 1/4" x 1/4" going inside the chest of Bashir deceased and 10 injuries upon different parts of the body of Mohammad Sadiq deceased, including a pellet wound 1/4" x 1/4" on the front aspect of the right shoulder joint, another pellet wound 1/4" x 1/4" on the front aspect and outer side of the left arm ; a pellet wound (exit wound) at the back and outer aspect of the left arm ; a pellet wound 1 /4" x 1 /4" wound of entry, on the outer aspect of the left elbow-three pellet wounds 1/4" x 1/4" each one on the back of the elbow-joint (this was wound of exit); on the right side of the abdomen in its upper part ; on the left groin.
9. On the same day the same doctor found P. W. Mohammad Amin having a lacerated wound 3/8"x 1/6"on the front aspect of the left side of the chest, 6J" below the nipple and 3' from the middle line.
10. The injury was simple and caused by a fire-arm. P. W. 2, Dr. Malik Mohammad Aslam bad examined appellant Fazal Mohammad on 13-11-1967, at 8-15 p.m. And found a gun-shot wound of entry 1/6"x 1/6" on the right nipple and a wound of exit 1 /4" x 1 /4" on the back of chest. Both the injuries were grievous and caused by a fire-arm. On the same day the same doctor had examined appellant Kamal Din and found on his person a gun-shot wound of entry 1/4"x 1/4" on the back of left elbow- joint.
11. It appears that a counter-case was also started upon a statement made by appellant Fazal Mohammad and recorded at about 1-15 a.m. On the 14th November 1967.
12. The defence case appears to be that on the date and at the time of occurrence appellant Fazal Mohammad had been abused by P. W. Mohammad Ramzan in front of the house of cobblers which was in front of the house of Mohammad Ramzan and when the former had remonstrated the latter fired at him. Appellant Kamal Din tried to lift Fazal Mohammad and he was fired at with a pistol by Latif who was an accused in the cross-case. The injured appellants were taken on a cart to Police Station Thikriwala accompanied by appellant Abdul Ghafoor but as the Thanedar was not present, the injured persons were put in a car and taken to the hospital at Lyallpur. The Thanedar of Lyallpur came to the Hospital and recorded the statements of Fazal Mohammad and Kamal Din. Appellants Abdul Ghafoor and Mohammad Sharif pleaded alibi and their case was that appellant Mohammad Sharif was present in the College on the 13/14-11-1967 and he was called by his brother, appellant Abdul Ghafoor on the 14th November 1967, to his house and was told that a case had probably been registered against them. Appellant Abdul Ghafoor said that he worked in the office of the Municipal Committee Lyallpur as Senior Accounts Clerk at the relevant time and was actually working on the day and at the time of the occurrence. He also examined several defence witnesses in support of his case.
13. The night of occurrence was the 10th of Sha'ban and the moon set on that date at about 2-56 a.m.
14. There are certain striking features of the case which are sufficient to show that the prosecution has failed to prove its case beyond any reasonable doubt. These features cannot fail to attract the attention of a prudent person.
15. It is an admitted fact that there was bad blood between the appellant and the members of the complainant party, and the two parties belonged to two different castes. The complainant party belonged to the Arain case and the appellants belonged to Gujjar case.
16. "We are clear in our minds that the evidence of witnesses, other than Ibrahim, is interested.
17. Undoubtedly, Ibrahim is remotely connected, but he has no enmity with the appellants. He belongs to the Chak where the occurrence took place. The trial Judge very properly considered Ibrahim as a disinterested witness . . . . . . We consider that the evidence of Mohammad Amin and Rehmatullah is sufficiently corroborated by Ibrahim whom we consider as an independent witness."
18. The learned Judges further proceeded to observe : "The occurrence took place before the darkness set in and from the presence of innumerable pellet marks on the walls of the complainant's house, we conclude that the story narrated by the eye- witnesses gives a true account and we are inclined to accept the same and proceed to act on it."
19. It may be stated here at once that although according to the prosecution the firing continued throughout the night from sunset to approximately sunrise, not a singe pellet was recovered from the place of occurrence. This in itself is a reasonable ground to hold that the prosecution has failed to prove the place of occurrence beyond any reasonable doubt. Furthermore, the learned Judges appear to have misconceived the evidence when they said that there were innumerable pellet marks present on the walls of the complainant's house. There is no evidence that any body actually saw the pellet marks on the walls of the com--plainant's house. Neither the Station House Officer, P.
20. W. 18, Nazar Hussain Shah who visited the site of the occurrence and carried out the investigation nor P. W. 16, Aurangzeb, draftsman who prepared the site plan at the instance of the Station House Officer, say anything about the pellet marks on the walls of the complainant's house. In fact none of them could say so as they were not present at the occurrence and not a single pellet was recovered either from the walls or from any where in the place of occurrence.
21. Admittedly P. W. Ramzan had fired from his revolver from inside his baithak and had also re-loaded it (P. Ws. Mohammad Ramzan and Ibrahim). This revolver was produced by Mohammad Ramzan and seized under Exh. P. G. The revolver appeared to be '32 bore and had two barrels and the empties could be ejected from its side and the revolver could be re-loaded. The failure of the prosecution to produce any empties of this revolver is significant and the omission to produce them furnish a reason--able basis for holding that the place of occurrence was not proved beyond any reasonable doubt.
22. Furthermore, the discrepancy in the size of the injuries found upon the persons of appellant Fazal Mohammad and Kamal Din is inconsistent with the prosecution case that both the appellants were injured by P. W. Ramzan with the same weapon. As may have been noticed already, the size of the injuries on appellant Fazal Mohammad is 1/6" x 1/6" while that upon appellant Kamal Din is of the size of 1/4" x 1/4". The benefit of this discrepancy naturally goes to the appellants.
23. Again it is indeed improbable that the firing continued from sunset to sunrise on the next day. If indeed it was so, it would have created quite a commotion in the entire locality and some one, either a neighbour or a relative who were admittedly present in the locality must have informed the Police and sought their help. The facts and circumstances of the case show that the pro--secution put forth this story of night long firing in order to explain the obvious delay in lodging the first information report on the next day at 5 a.m. In this connection it is pertinent to observe that the two injured appellants Fazal Mohammad and Kamal Din were taken to the Hospital on the 13th November 1967, at 8-50 P.m. And their statements recorded at 1-15 a.m. On the 14th November 1967.
24. The explanation sought to be given by the prosecution is rigmarole and not acceptable to a prudent person. In the first place, a police station remains always open and even if the Station House Officer is not present, some Police Officer, viz. Muharrir Head Constable is always present to record the first information report. It is also difficult to believe that there was such heavy and persistent firing throughout the night that it wasimpossible either for the complainant or any of his relations or any member of his party to inform the police and seek help of the authorities. Here again the absence of recovery of a single pellet from the*place of occurrence is inconsistent with the prosecution case that there indeed was such a heavy and persistent firing throughout the night. It is thus evident that the prosecution has come out with a cock and bull story to explain the considerable delay in the lodging of the first information report.
25. It is again significant that the complainant suppressed the fact that he had injured the said two appellants by firing with his revolver. In the first information report he merely stated that he had fired from his baithak in order to save himself. Then only in his supplementary statement he for the first time stated affirmatively that he had fired from his revolver hitting appellants Fazal Mohammad and Kamal Din.
26. It is again difficult to believe the improbable story that although P. W. Mohammad Amin had received only a simple injury he lay on the road almost by the side of the balthak of P. W.
27. Mohammad Ramzan throughout the wintry night. Admittedly no blood was recovered from the place where he lay on the lane just outside the baithak of P. W. Mohammad Ramzan. P. W. Dr. Ahmad Ghulam Mohammad, Medical Officer, District Headquarters Hospital, Lyallpur who had examined P. W. Mohammad Amin on the 14th November 1967, at 4-15 a.m. Found the shirt and Banyan of the witness blood-stained.
28. It is improbable that the complainant and his party were not aware of the injuries caused to appellants Fazal Mohammad and Kamal Din. The general statement made by the witnesses that the appellants fired throughout the night is obviously inconsistent with the medical evidence that two of the appellants were in fact in the hospital on the 13th November 1967 at 8-15 p.m. There is also no reasonable ground to suspect the evidence of P. W. Dr. Mohammad Aslam Malik that appellant Abdul Ghafoor had accompanied the two injured appellants and was present at the hospital on the 13th November 1967, at 8-15 p.m. No reason has been suggested as to why P. W. Dr. Mohammad Aslam Malik, the then Medical Officer in District Headquarters Hospital, Lyallpur would falsely state that "the injured persons were accompanied by some relatives including Abdul Gbafoor accused present in Court." Whether the evidence of the doctor affirmatively proves the presence of Abdul Ghafoor on the date and time stated by him, it is at least enough to furnish a reasonable basis for giving the benefit of doubt to appellant Abdul Ghafoor.
29. On a reference to the photograph of the window, it seems to us difficult for anybody to see through the vertical bars of the window the occurrence of firing by the appellants from the place the prosecution alleged they fired. In the site plan, Exh. P. H./1 the window is at No. (4) in the baithak and the place from where the appellants fired is No. (7), across the lane to the south-east opposite the house of appellant Mohammad Aslam. Fazal Mohammad was arrested on 14-11-1967 and he led to recovery of gun P. 4, from his kitchen. This is improbable for he was taken to the hospital. There is nothing to show how could he have concealed the gun in his kitchen.
30. Having regard to these broad features of the case the appellants were entitled to the benefit of doubt which should have been given to them. We accordingly allow the appeal; set aside the conviction and sentences of all the appellants including the absconding appellant Mohammad Aslam, and acquit them of all the charges, and direct that they shall be set at liberty forthwith if not wanted in connection with any other matter.
31. We may, observe here that although appellant Mohammad AS1am has absconded during the pendency of the present appeal and has remained absconding uptill now, the benefit of our judg-- ment should be given to him also in order to do complete justice in the case. We, therefore, do not find it necessary to postpone the hearing of the case of Mohammad Aslam until big presence before the Court.