LEHRASAP KHAN. J.--Muhammad Yaqoob alias Loomri (25) and Ataullah (30), were tried by the learned Sessions Judge, Gujranwala, under section 302/34, P.P.C. For the murder of Nazir Ahmad.
Vide judgment dated 31-7-1984, the learned trial Judge convicted Muhammad Yaqoob alias Loomri under section 302, P.P.C. And sentenced him to death and a fine of Rs. 10,000 or in default two years' R.I. It was directed that the fine if realized, half of the same would be paid to the legal heirs of the deceased as compensation, Ataullah co-accused was, however, acquitted.
2. He convict Muhammad Yaqoob alias Loomri, has challenged his conviction and sentence through Criminal Appeal No. 474 of 1984, while the matter also stands referred to us under section 374, Cr.P.C., vide Murder Reference No. 149 of 1984, seeking confirmation of death sentence awarded to Muhammad Yaqoob. The complainant has also filed Criminal Revision No. 736 of 1984, challenging the acquittal of Ataullah acquitted co-accused. All these three matters shall be disposed of by this Judgment.
3. The occurrence in this case took place on 27-6-1983, at 8-00 a.m. In the area of village Chehal Kalan at a distance of three miles from Police Station Qila Dedar Singh, District Gujranwala. F.I.R. Exh.
P.F. Was lodged at the police station by Ali Muhammad P.W.10, brother of Nazir Ahmad deceased, on the same day, i.e. 27-6-1983, at 10-15 a.m. It was recorded by Mian Khan S.I./S.H.O. P.W. 12.
Regarding motive it has been alleged that about one year prior to this occurrence, about forty Acres of agricultural land was obtained on lease by Ali Muhammad P.W. 10, brother of the deceased, from Ghulam Muhammad Jat. Ataullah acquitted accused also wanted to obtain this land on lease and, therefore, about 14/15 days prior to the occurrence, fight took place while harvesting crop between Ataullah and his father Din Muhammad on the one side and Ali Muhammad and his brother on the other. Consequently proceedings under section 107, Cr.P.C.
Were resorted to against both the parties.
4. As for the main occurrence, it has been stated that on the eventful day, the deceased alongwith his brother Ali Muhammad P.W. 10, Muhammad Bashir (not produced) and Muhammad Azam (P.W.11), was proceeding to Kamoke and while they were at a distance of two Killas short of Chehal Kalan at 8-00 a.m., the deceased sat to urinate but the other three companions aforementioned continued walking and were at a distance of about a few Karams from the deceased. At that time Muhammad Yaqoob appellant armed with carbine and Ataullah acquitted accused armed with Chhuri emerged at the scene. Muhammad Yaqoob repeatedly fired three shots with his carbine on the deceased hitting him on his legs and left flank. Nazir Ahmad fell down. Ataullah cancelled him Chhuri blows injuring his face on the right side. Nazir Ahmad succumbed to the injuries on the spot.
Ali Muhammad, leaving Muhammad Bashir and Muhammad Azam on the spot to guard the dead body went to the police station and lodged the first information report.
5. P.W.1 Dr. Anjam Javed, then posted at District Headquarters Hospital, Gujranwala, performed the autopsy on the dead body of Nazi Ahmad deceased on 27-6-1983 at 5-00 p.m. He noticed the following injuries on the dead body of Nazir Ahmad deceased:-- (1)An incised wound 6 c.m. x 1 -- c.m. Bone deep, on right side of chin.
(2)Multiple fire-arm wounds (total four in number) in area 9 c.m. x 6 c. m., back and outer side of left upper arm, upper part, each of size -- c. m. x -- c. m. Going deep, burning around margins was present.
(3)Multiple fire-arm wound (9 in number) area 11 c.m. x 11 c.m., outer and back of left chest, middle part, each of size -- c.m. x -- c.m. Going deep, burning around the margins was present.
(4)Multiple fire-arm wounds (three in number) area 7 c. m. x 5 c.m, back of right knee joint, each of size -- c.m. x -- c.m. Going deep, burning around margins was present.
(5)Fire-arm wound, -- c.m. x -- c.m., going deep back of right leg middle part, burning around margins was present.
(6)Multiple fire-arm wounds (4 in number) area 8 c. m. x 10 x c.m., back of left leg upper part, each of size -- c.m. x -- c.m. Going deep, burning around the margins was present.
He opined that the cause of death was haemorrhage and shock resulting from injuries Nos. 3 and 4 which was sufficient to cause death in the ordinary course of nature. According to him all the injuries were ante-mortem.
6. Muhammad Yaqoob appellant was arrested on 3-7-1983 by Mian Khan S.I. P.W. 12 while the same officer arrested Ataullah on 4-7-1983.
On 27-6-1983, two empties P.8/1-2, another empty P. 8/3 and Chhuri P. 9 were recovered from the spot and were secured vide memo. Exh. P.E., which has been attested by Muhammad Yar P. W. 8, Bahadur Ali (not produced) and Mian Khan S.I. P. W. 12.
On 5-7-1983, Muhammad Yaqoob appellant led to the recovery of carbine P. 7 from his residential Kotha, which was taken into possession, vide memo. Exh. P.D. Which has been attested by Sanaullah P.W. 9, Muhammad Abbas (not produced) aid Mian Khan S.I. P.W. 12.
7. As per report of Forensic Science Laboratory Exh. P.Q. Empties recovered from the spot wedded with the carbine (shot pistol) recovered from the appellant. It is, however, noteworthy that the so- called crime empties and the carbine were delivered at the Forensic Science Laboratory) on one and the same day. The report of the Laboratory thus loses its importance and in such circumstances the possibility that after firing from the carbine the empties were prepared by the police, cannot be excluded.
8. Ali Muhammad P.W. 10 and Muhammad Azam P.W.11, testified at the trial as eye-witnesses and fully supported the prosecution version as contained in the F.I.R. Exh. P.F.
9. The plea of the appellant was that of total denial. He claimed that on account of enmity he has been falsely involved and that recovery of carbine has been planted on him. He, however, did not lead any evidence in his defence.
The acquitted accused Ataullah also pleaded not guilty. He claimed that due to party faction he has been falsely implicated in the case. He produced D.W. 1 Ataullah Wazir A.S.P. Hafizabad and D.W. 2 Khushi Muhammad Lambardar of Village Chehal Kalan. Ataullah Wazir deposed that Ataullah accused was found innocent and Ali Muhammad has also accepted his innocence after Khushi Muhammad made an oath to that effect on Holy Qur'an. Khushi Muhammad Lambardar D.W. 2 testified that he had given the oath about the innocence of Ataullah after satisfying himself of his innocence. He, however, stated that he was not prepared to give oath on Holy Qur'an again about the innocence of Ataullah. After an oath was made by Khushi Muhammad, a writing Exh. D.B.
Titled Halafnama was written. It was signed by ALI Muhammad complainant and Khushi Muhammad D.W.
2. This writing was witnessed by Hiddyatullah, Din Muhammad and Nazar Muhammad. As per contents of Exh. D.B. Khushi Muhammad D. W. 2 stated on oath on Holy Qur'an that Ataullah was innocent. This oath was accepted by Ali Muhammad.
10. We have minutely gone through the judgment under appeal passed by the learned trial Court.
The case of Ataullah acquitted accused has been discussed in para. 13 of the judgment. It has been observed that Ataullah firstly raised the plea of alibi. He alleged that he was present at Noshehra Virkan on the day and time of occurrence. He had gone there to see his ailing brother. No evidence in support of this plea of alibi has been produced by him before the trial Court, although he had produced some persons to endorse his plea before the Investigating Officer, who declared him innocent. Consequently the A.S.P., Hafizaba3, namely, Ataullah Wazir took decision about the innocence of Ataullah on the basis of oath taken on Holy Qur'an by Khushi Muhammad Lambardar D.W.
2. This oath was accepted by the complainant according to Ataullah Wazir, the then A.S.P.
Hafizabad. On the basis of testimonies of D.W.1 Ataullah Wazir A.S.P. And D.W. 2 Khushi Muhammad Lambardar and also in view of the contents of the writing Exh. D.B. Pursuant to oath, the learned trial Judge found Ataullah to be innocent and ordered his acquittal. His finding about the innocence of Ataullah is not based on any evidence produced before him (the trial Judge). The mere fact that the complainant declared before the A.S.P. That he was satisfied about the innocence of Ataullah after the oath was administered to Khushi Muhammad does not furnish judicial proof about the innocence of the said accused. As a matter of fact, the Investigating Officer cannot legally declare an accused to be innocent by ascertaining about his innocence or guilt from a refree appointed for this purpose. No C such reference is legally warranted. The Investigating Officer or the agency has to declare an accused guilty or innocent on the basis of his/its own independent investigation. Any way, the learned trial Court cannot act upon the ipse dixit of police and it can only acquit an accused after it has come to its own conclusion that on the basis of legal evidence led at the trial, the Court has arrived at the finding that the guilt was not brought home to the accused.
11. In the light of these observations we are inclined to hold that acquittal of Ataullah is not based on any legal evidence and that the trial Court has not come to its own conclusion about the innocence or guilt of the said accused. In this view of the matter, we accept the revision petition, challenging the acquittal of Ataullah and remand the case for re-trial in accordance with law.
Consequently the conviction and sentence of Muhammad Yaqoob alias Loomri is also set aside.
Ataullah (respondent in the criminal revision) if already on bail shall continue to remain on bail. The re-trial shall be conducted by some Additional Sessions Judge, Gujranwala, to whom the case shall be entrusted by the learned Sessions Judge, Gujranwala. He shall conclude the trial Within three months.