1. MUHAMMAD AFZAL CHEEMA, J.-The six appellants, namely. Abdul Aziz alias Jeeja, his two sons Shafiq alias Fiqu mentioned as Rafiq in the first information report and Abdul Qayyum alias Quma, Mughals by caste, and Butchers by profession, Muhammad Ayub, Khuda Bakhsh alias Bular and Taj Din, Ghauris by caste, were tried by the Additional Sessions Judge, Lahore, for the double murder of Elahi Bakhsh Gujjar and his cousin Inayat allegedly committed by them, on the 9th of January 1969, at about 3-45 p. m., in the Sheep and Goat Market (Bakkar Mandi), one mile from Police Station Nawankot, Lahore. All the six accused were convicted under section 148, P. P. C. With an award of one year's rigorous imprisonment each: They were also convicted under section 302 read with section 149, P. P. C. Abdul Qayyum alias Quma and Taj Din were each awarded the sentence of death and a fine of Rs.2,000 each on each count, while the others were sentenced to transportation for life each and a fine of Rs. 2,000 each on two counts. Fifty per cent. Of the fine, if realized, was directed to be awarded as compensation to the heirs of the two deceased. They have challenged their convictions and sentences through Criminal Appeal No. 376 of 1971, and the case of Abdul Qayyum alias Quma and Taj Din, the two condemned prisoners, has also been referred to us under section 374, Cr. P. C. For confirmation of the sentences of death. In addition to this, Muhammad Hanif, an eye-witness in the case and brother, of Elahi Bakhsh deceased has also filed a private revision for enhancement of the sentences of transportation for life awarded to four of the appellants to those of death. It was trot admitted to a regular hearing but was directed to be heard along with the connected case. This Judgment will dispose of all the three cases, viz. The murder reference, the appeal and the revision petition.
2. The facts as revealed in the initial report lodged by Nawab Din P. W. 3, at Police Station Nawankot, at 4-15 p. m., and marked as C. W. 13/A, briefly, are that Nawab Din, complainant, and his deceased uncle Elahi Bakhsh, had commission agents' business in the Bakkar Mandi, Lahore where Abdul Aziz and his sons were also engaged in the same trade. About six months prior to the occurrence, Jagga, the younger brother of Nawab Din, complainant, had died in a Police encounter. Almost simultaneously with this Nawab Din, complainant, and his uncle Elahi Bakhsh deceased, on conviction under the Control of Goondas Ordinance, were externed from Lahore and confined within the jurisdiction of Police Station Raiwind: Consequently, s they were constrained to give up their business. On the morning of the 19th of January 1969, both of them visited Qila Lachman Singh with the permission of the Station House Officer of Police Station Raiwind. At about 10/11 a. m. They sent their driver Faqir Muhammad P. W.
4. To collect from Abdul Aziz alias Jeeja, appellant some amount which he owed them in connection with their business. The appellant allegedly promised to make payment towards evening by which time he would be able to arrange collection.
2. Accordingly, Nawab Din complainant, his son Inayat deceased, his nephews Hanif P. W. And Elahi Bakhsh deceased visited the Bakkar Mandi in their car, which was driven by Faqir Muhammad P. W.
4. Getting down from the car, on the Bund Road shown in the site plan Exh. C. W. 14 /B, the two deceased went up to Abdul Aziz alias Jeeja, appellant followed by Nawab Din and Hanif P. Ws. On seeing them Abdul Aziz alias Jeeja exhorted his companions to kill them. On this, all the six appellants, of whom Shafiq alias Fiqu and Ayub were armed with rifles; Khuda Bakhsh alias Bullar and Taj Din with pistols, and Abdul Qayyum alias Quma with a gun attacked the complainant party. Elahi Bakhsh and Inayat died at the spot as a result of the, firearm injuries. Nawab Din, Hanif and Faqir Muhammad P. Ws., however, succeeded in making good their escape. Nawab Din promptly lodged the report Exh. C. W. 13/A at the Police Station Nawankot at 4-15 p. m. Within half an hour of the occurrence.
3. Having recorded the statement Exh. P. W. La/A of Nawab P. W. 3 of which the Exh. C. W. 13/A is rather misleading. Sub---Inspector Sultan Anwar C. W. 17 went to the spot and prepared the injury statements Exh. C.W. 13/A and Exh. C.W. 13/D of Elahi Bakhsh and Inayat as also their inquest reports Exh. C. W. 13/C and Exh. C. W. 13/E respectively. He sent the dead bodies for post-mortem examination under the escort of F. C. Miran Bakhsh C. W.
4. He secured from the spot gun Exh. P. 1 vide memo. Exh. P. E. He also picked up from the spot revolver Exh. P. 2, five empty cartridges Exh. P.
3. 3/1-5, blood-stained earth from two places where the two deceased lay dead, two empty cartridges Exh.P. 4/1-2, one blue bag Exh. P.
6. Containing five live cartridges and a sign board of Pepsi Kola Exh. P. 5 which were all taken into possession vide memo. Exh. P. F. It may be mentioned in this context that from a perusal of the original memo. It appears that the entry regarding the board Exh. P. 5 was inserted subsequently as alleged by the counsel for the complainant. It was not till the 23rd of January 1969 that Taj Din appellant while in custody, led to the recovery of his licensed pistol Exh. P. 8, along with the licence Exh. P. G. From his residential house which were taken into possession vide memo. Exh. P. G/1. The investigation was later entrusted to Sub-Inspector Javed Akhtar Bajwa C. W.
18. He arrested Shafiq appellant on the 3rd of February 1969. In support of their plea of alibi, Muhammad Ayub produced before him, medical certificate Exh. C. W. 17, dated 7th February 1969 pur--porting to have been issued by Dr. A. Rehman Chaudhari. Khuda Bakhsh produced before him a photostat copy of nikahnama Exh. C. W. 17/B relating to the marriage of one Barkat Ali of Lyallpur with Mst. Shahnaz Begum of Lahore on the 24th of December 1968. Abdul Qayyum produced a copy of nikahnama Exh. C. W. 17/C relating to his own marriage with Mst.
4. Bilquees on the 30th of December 1968, invitation card Exh. C. W. 17/D purporting to have been issued by Abdul Aaiz relating to the marriage of Abdul Qayyum; as per schedule the marriage and volima ceremonies were to be held on the 6th and 7th of January 1569 respectively. Mehar Din also produced before him photostat copies of commendation certificates C. W. 17/17 granted to Muhammad Ayub and C. W. 17/G to Taj Din appellant. The Sub-Inspector also got prepared statements of account of Elahi Bakhsh deceased Exh. P. B./1 and Exh. P.B/2 by Munshi Ilam Din P. W.
5. 5, who had worked as Munshi for the deceased in the Sheep and Goat Market for four or five years and maintained their accounts. According to the statement of account prepared by Ilam Din in his own band, on the 3rd of May 1968, Elahi Bakhsh had to recover a sum of Rs. 37,137 from the customers and a sum of Rs. 2,429 was due to him from Ayub accused. On the same day, the position of his account with Chaudhari Jeeja was that the latter owed to Elahi Bakhsh deceased a sum of Rs. 2,162. Taking a somersault he, however, hastened to add that Ch. Jeeja was not Jeeja, one of the accused in this case.
6. Mr. Javed Akhtar Bajwa stated that in the course of investi--gation as many as 332 persons were examined, including the nine C. Ws. Accepting the plea of alibi of the other accused and conceding the exercise of the right of private defence in favour of Taj Din and Shafiq appellants he challaned them under sec--tion 304, P. P. C.
7. Post-mortem examination of the dead body of Elahi Bakhsh was conducted by Dr. Nusrat Ullah P.
8. W. 1 on the 10th of January 1969 at 2 p m. It was a body of a young man of 32 years of strong built.
9. The body was soiled with blood. A woollen shirt, a cotton vest and a shalwar on the person of the deceased were blood-stained and perforated at various places. Vide post-mortem examination report Exh.P.C the doctor found the following injuries:--
(1) Multiple perforations (12) each measuring 1/8'x 1/8" an area, 3' x 2', front of abdomen at umbilical region. Pellets had perforated the abdominal wall. Peritonium, small intestines at 34 places right kindly at its upper lobe, stomach at two places. Six pellets had made their exit from rightfank. Rest of the pellets were present in small intestine and muscles of the back. Abdominal cavity contained three hundred C. C. Of blood and chyle.
(2) A lacerated wound, 1' x 1/2' with multiple perforations along its periphery right thigh upper part.
10. Scrotum and bouth the testies were lacerated. Lower one/third of the scrotum was missing. Paper corks (wad) and other contents of the cartridges were present deep in the wound. Right femur was broken at its upper one/third. Muscles were lacerated and pellets had made 17 exit wounds at posterior aspect of the thigh in the middle.
(3) A lacerated wound 1' x 1/2' with multiple perforations along its periphery right upper arm medical aspect upper one/third. Muscles were lacerated. Right humerus was broken in -the middle. Thirteen pellets had made their exit at the posterior aspect of upper arm from an area, 3' x 2'. Four pellets were present in the muscles. Two pellets had entered the chest from its lateral aspect. Both the pellets had perforated the chest wall, pleura, right lung and aorta. Right pleural cavity contained 1400 C. C. Of blood. Pellets were lying in right pleural cavity.
(4) Firearm wound of entry, 1--' x 1'. Left side of chest at posterior axillary line. The edges were charred and inverted. The pellets made their wound of exit 3' posterior to wound of entry in an area, 2' x 2'.
(5) Firearm wound of entry of right pellets right leg lateral aspect upper part. Seven wounds of exit were present at the posterior aspect. Muscles were lacerated. Bones were intact.
(6) Firearm injury 1/8' X 1/8' left shoulder. The pellets had broken the scapula and was lying on the muscles of the neck.
(7) A lacerated wound, 1' x 1/8' x skin deep right cheek.
11. Internal examination, revealed presence of two ounces of semi-solid food in the stomach. Liver was perforated at two places. Bladder was empty. Death, in the opinion of the doctor, was on account of cardio-respiratory failure due to haemorrhage and shock caused by injuries Nos. 1, 2 and 3, which were individually sufficient to cause death in the ordinary course of nature. Injuries Nos. 4 and 6 were grievous while No. 7 was simple. Death, had occurred within a few minutes of the receipt of the injuries. Time between death and post-mortem examination was about 21 hours. The doctor extracted some pellets and a wad and handed them over to the police.
12. On the same day, at 3 p.m. The same doctor performed autopsy on the dead body of Inayat deceased. It was the body of a young man of 25 years of average built. The deceased was wearing a dhoti a shirt and bore perforation and stains of blood. Vide report Exh. P. D. The doctor found the following injuries:---
(1) Firearm wound of entry r fight deltoid region and aspect, 3/4'x 1/4'. Edges were lacerated and inverted. The bullet had pierced the muscles of deltoid region out axillary wall, muscles of chest, fifth intercostal space pleura, right lung aorta at the base left lung and made its wound of exit through third intercostal space and anterior axillary line. The wound was 1/4' x 1/4'.
(2) Fire-arm wound of entry, 1/2' x 1/4' left side in front and lower part of chest. Cartilages of fifth and sixth ribs on left side were broken, left side pleura was ruptured. Muscles were ruptured. The bullets had made its exit from leis mid-axillary line, 2" below the axilla. Wound of exit was 1/4' x 1/4'.
13. Stomach contained four ounces of semi-digested food. Bladder was empty. Death, in the opinion of the doctor, had occurred due to haemorrhage and shock on account of injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 2 was grievous and caused by a fire-arm. Death had occurred within a few minutes of the receipt of injuries. Time between death and' post-mortem was 21 hours. In answer to a Court question, the, doctor positively excluded the use of pistol, revolver or rifle, in the case of Elahi Bakhsh. Regarding Inayat he opined that the two injuries on his person were caused by a pistol and not by a rifle. According to him, injuries Nos. 4 and 6 of Elahi Bakhsh were most probably the result of one shot.
14. On the 11th of January 1969 'Taj Din appellant presented an application to D. S. P. Zulfiqar Alt who supervised the investiga--tion on the basis of which a cross-case under section 307, P. P. C. Was registered the same day against Hanif P: W. 2, Nawab Din P. W. 3 and Faqir Muhammad P. W. 4, who were challaned by Mr. Javed Akhtar Bajwa on the 6th of March 1969. On the 13th of January 1969, an application C. W. 15-A was addressed to the Minister for Interior Government of West Pakistan, by four persons namely, Mehar Din', Saleh Muhammad, Fazal Hussain and Barkat Ali. Mehar Din described himself as President Union; Bakkar Mandi, Saleh Muhammad as Secretary, Bakkar Mandi Federation, allegation in substance that the two deceased and the P. Ws. Had come armed in a car and opened fire on Taj Din who fired at Inayat deceased in self-defence killing him at the spot and that Shafiq picked up the gun of Inayat in order to save Taj Din fired at Elahia who was also killed.
15. On the 10th of February 1969, Criminal Misc. No. 793 of 1969 was moved by Muhammad Hanif P. W. 2 seeking transfer of the investigation of the case. This petition was dismissed by M. Jamil Asghar, J.
16. Vide his Lord--ship's order dated the 19th May 1969. Three days later, on the 22nd of May 1969.,Muhatiimad Hanif filed complaint Exh. C. W. 2/A against all the six accused originally mentioned by Nawab, wherein by and large the version of the occurrence as revealed in the police report Exh. C. W. 13/A was reiterated. Direct allega--tions of partisanship were levelled against Mian Sultan Anwar Sub-inspector on the grounds firstly that Mian Sultan Anwar Sub---Inspector had in conspiracy with the accused persons manoeuvred to send for Elahi Bakhsh deceased and Nawab Din complainant on the pretext of the collection of the amount due to them from the commission agents of Bakkar Mandi. He had allegedly sent a message to them through their driver Faqir Muhammad P. W. Secondly that despite the registration of the case under section 302 of the 'Pakistan Penal Code for the double murder of Elahi Bakhsh and Inayat he submitted the challan only under section 304, P. P. C. Add that too against Taj Din and Shafiq appellants placing the four accused in column No. 2. Thirdly, that on the statement of Taj Din appellant he had registered a cross-case against Hanif, Nawab and Faqir Muhammad under section 307, P. P. C. Fourthly, that he submitted the two challans in Court notwithstanding the fact that a stay order was issued by the High Court in Cr. M. No. 793 of 1969 filed by Hanif for the transfer of the investigation.
17. From the foregoing narrative, it would thus appear that there were two conflicting versions of the same occurrence, one based on the police investigation which found four of the accused as innocent and challaned only Taj Din and Shafiq appellants and that too under section 304, P. P. C.
18. For having exercised in the exercise of the right of private defence, and the other based on the initial report lodged by Nawab P. W. Reiterated and supple--mented by the complaint filed by Muhammad Hanif. Adopting the procedure laid down in Nur Elahi v. The State (PLD 1966 SC 708), the learned trial Judge proceeded to examine, in the first instance the witnesses in the complaint case as P. Ws. And then examined the witnesses in support of the police case as C. Ws.
19. It appears that during inquiry, two sets of the accused, namely, the three Mughals and the three Ghauris did not pull together and tried to shift the responsibility on one another. Taj Din stated that Qayyum, Shafiq, and Abdul Aziz had killed both the' deceased. 'At the trial however he went back on it and stated that Nawab, Hanif and Budha used to meet him in the jail and it was at their instance that he had tried to shift the responsi--bility. Denying his presence at the spot Khuda. Bakhsh alias Buljar raised'a plea of alibi and attributed his false implication to his relationship that he was a brother of Taj Din and maternal uncle of Ayub accused both of whom had appeared as police witnesses in the magisterial inquiry held regarding the death of Jagga brother of Nawab P. W. In a police encounter. Likewise" Ayub Ghauri raised a plea of alibi on the ground of illness and attri-- buted his false implication for having appeared as a, witness 'in the judicial inquiry, regarding the alleged death of Jagga in a police encounter; which offended the Gujjar party. Abdul Qayyum also raised a plea of alibi and stated that having been married only two days before, the occurrence at the relevant time he was present in the house of his in-laws in Taxali Gate, Lahore, but he added that his father Abdul Aziz and his brother Shafiq were also with him. He alleged that the Gujjar party demanded Jagga tax from him and their relations which they refused to pay and for that reason they incurred the displeasure of the Gujjars party. Shafiq alias Fiqu took an inconsistent position during inquiry. Before the committing Magistrate, he denied his presence at the relevant time and stated that he had gone to Lahore Cantonment in connection with his contract to make supplies to the Army. At the trial, however, it was alleged by him that the Gujjar party wanted to extort Jagga tax from him and other commission agents of Bakkar Mandi which they refused to pay and that he also dissuaded the other arhtis not to pay the Jagga tax to the Gujjar party who became inimical to him. He produced a copy of a complaint Exh. D. F. Filed by him in the Court of the A. D. M., Lahore, on the 19th of March 1964, against Abdul Qayyum, and Shafiq, Siddique sons of Aziz alias Jeeja and Mushtaq son of Khuda Bakhsh under section 307/34, P. P. C. As also Exh. D. G., a copy of the order passed by the A. D. M. In the earlier complaint under section 253, Cr. P. C. The last accused to be examined was Abdul Aziz alias Jeeja who also denied his presence at the spot and stated that he had gone to Taxali Gate to the house of the in-laws of his son Abdul Qayyum for bringing his muklawa. They examined no witness in defence.
20. Having considered the evidence led in support of the com--plaint-version and that of the police, the learned trial Judge accepted the former in toto and convicted and punished the accused as detailed earlier. It would not be out of place to reproduce the relevant portion contained in the judgment which reads as follows:---- "42. According to Dr. Nusrat Ullah, Deputy Surgeon Medico-legal, West Pakistan, Lahore, P. W. 1, the injuries on the person of Elahi Bakhsh deceased were caused by gun shots and those on the person of Inayat deceased by a pistol. Abdul Qayyum accused was armed with a gun. Taj Din accused did not deny his presence at the place of the occurrence. Even Mehar Din C. W. 15 and Muhammad Saleh C. W. 16 stated that he fired his pistol and hit Inayat. In other words, the death of Elahi Bakhsh was caused by tire shots fired by Abdul Qayyum accused while Inayat was killed by the shots fired by Taj Din accused. The medical evidence does not show that any of the deceased suffered any injury from a rifle. But that does not mean that Muhammad Ayyub, Muhammad Shafiq and Khuda Bakhsh accused did not take part in the occurrence. The three eye-witnesses named above established that they also opened fire from their respective weapons. It is just possible that they missed their targets. To Jeeja the role of raising a lalkara and commencing the attack is ascribed by the com--plainant. In these circumstances, Muhammad Ayub, Khuda Bakhsh, Muhammad Shafiq and Abdul Aziz are equally responsible for the deaths of Elahi Bakhsh and Inayat. But as the deaths were not actually caused by them, they may not be awarded the same sentences as are going to be awarded to Abdul Qayyum and Taj Din accused."
21. Learned counsel for the appellants raised the following con--tentions before us:
(1) That the first informant Nawab and the complainant Hanif P. W. 2 bad given materially discrepant versions of the same occurrence;
(2) That the complaint, which ultimately formed the basis of conviction of the appellants was not filed by Hanif till the 22nd of May 1969, i.e., more than four months after the occurrence without satisfactory explanation of the inordinate delay.
(3) That even otherwise the version in the complaint contained some basic and inherent falsities which were fatal to the case.
(4) That although the occurrence had taken place in broad daylight in the most populous part of the city, namely; the Sheep and the Goat Market, the complainant party could not produce a single disinterested witness in support of their ver--sion sought to be established by the interested and tainted testimony of three hostile witnesses namely, Hanif P., W. 2, Nawab P. W. 3 and Faqir Muhammad P. W. 4.
(5) That even otherwise the version given by Nawab in the initial report and later sought to be elaborated by the com--plaint filed by Hanif is not supported by medical evidence and rather comes into direct conflict with it.
(6) That the learned trial Judge erred in ignoring the police version which had finally emerged as a result of the examination of 332 persons who were altogether neutral and disinterested.
(7) That in any case, the possibility of false implication of some of the accused could not be ruled out for the reasons that the two sets of accused belonged to different families and groups who were not pulling together as clearly indicated by their statements wherein the Ghauris tried to shift the responsibility on the Mughal Qasabs.
22. Although the revision filed by Muhammad, Hanif had not been admitted to a regular hearing and Khawaja Sultan Ahmad, learned counsel for the complainant had, strictly speaking, no locus standi to take the floor yet having regard to the fact that he had been associated with the case at the earlier stages we consider--ed it expedient in the interest of justice to hear on the request of the State counsel despite an objection raised by the learned counsel for the appellants. He contended before us:----
(1) That since the conduct of Mr.Sultan Anwar Sub-Inspector was also under inquiry held in connection with the death of Jagga in a police encounter he was inimical to the complainant party and having completely identified himself with the accused had not only conspired with them to have the two deceased murdered but also spoiled the murder case.
(2) That the presence of Hanif, Nawab and Faqir Muhammad P. Ws. At the spot was admitted by the accused party as indicated by the registration of a cross-case under sections 307, P. P.C.
23. Against them on the statement of Taj Din appellant.
(3) That it being a case of broad daylight occurrence, the prosecution witnesses, who were the near relations of the two deceased, could not have left out the real culprits and falsely substituted in their place some innocent persons.
(4) That significantly enough. Nawab complainant and Elahi Bakhsh deceased, who were bound down under the Control of Groondas Ordinance within the jurisdiction of Raiwind Police Station and had visited Lahore on the fateful day after obtain--ing permission from Abdul Haq, S. H. O., P. W. 20, which clearly excluded the possibility of an unlawful errand and spoke of their bona fides.
(5) That for personal reasons the local police was not only inimical to them but patronised Taj Din and Ayub appellants who in token of their service and support to the police in the judicial inquiry held in the death of Jagga were also granted commendation certificates and for all these reasons the investigat--ing Officer unjustifiably accepted the false and frivolous pleas of alibi raised on behalf of the appellants and spoiled the case of the complainant.
(6) The delay in the lodging of the complaint was sought to be explained away on the ground that it was filed within a couple of days of the dismissal of the transfer application filed by Muhammad Hanif P. W. In the High Court referred to earlier. Reference was also made to the so-called fabrication of evidence, the interpolation of the Pepsi Cola advertisement board in the recovery memo. Exh. P. E.
(7) Lastly, it was contended that if the deceased and the prosecution witnesses had come with a criminal intent to extort Jagga tax, as alleged by the appellants they would not have obtained permission of the Sub-Inspector and would have come fully prepared to meet an eventuality and in any case would not have faired so badly as they actually did.
24. As stated earlier the version originally given by Nawab Din P. W. 3 in the Initial Report Exh. C. W. 13/A; promptly lodged within half an hour of the occurrence and later elaborated in the complaint Exh. P.
25. W. 2/A filed by Muhammad Hanif P.W: 2 on the 22nd of May 1969, was accepted by the learned trial Judge as found to have been established at the trial, in preference to the police version according to which Taj Din and 'Shafiq had killed Elahi Bakhsh and Inayat in exercise of the right of private defence which they had allegedly exceeded.
26. The first point to be considered is as contended by the learned counsel for the appellants, the two versions namely, the one contained in the F. I. R. And the other in the complaint are materially discrepant and inconsistent. A comparative analysis of the two documents which, of course, do not constitute substantive evidence as also that of the evidence led in support thereof shows that in the Initial Report the object of the visit of the complainant and the deceased has been left unexplained being confined to a vague reference to a private errand in Qila Lachhman Singh, whereas the object of visit mentioned in the complaint is that of attending a marriage, secondly that while the F.I.R. Makes no reference to the so-called message of Mian Sultan Anwar Sub- Inspector of Police. S. H. O. Police Station Nawankot, allegedly sent by him to Nawab Din complain-- ant and Elahi Bakhsh deceased through Faqir Muhammad P. W. Inviting them to visit the Bakarmandi for the realisation of the amount due to them from the Commission Agents on the pretext of having, persuaded them to make payment. The complaint, makes a detailed reference to the same, thirdly, that while from the narrative given in the F. I. R. One gets an impression that the car had walked up to Abdul Aziz alias Teeja. Just entering the Bakarmandi, the latter shouted that they should be killed. The version given in the complaint indicates that the moment the two deceased got down from the car and Nawab Din and Faqir Muhammad P. Ws. Were just going to get down and suddenly when Abdul Aziz alias Jeeja cam: from the Bakarmandi side greeted the two deceased and simultaneously with this exhorted his companions to kill them saying that the enemies had come and should not be spared. Since, however, the complaint was filed a little less than five months after the occurrence it referred to the hostile attitude of the police, registration of cross-case against tile members of the complainant party and sending up of only Taj Din and Shafiq under section 304, P.P.C. Despite a double murder having been committed by them and their co-accused. It was further alleged that the police had hastened to submit the two challans in the cross-cases despite the stay order issued by High Court in the petition filed by the complainant for the transfer of the investigation. In particular direct allegations of partisanship were levelled against Mian Sultan Anwar Sub-Inspec--tor of Police against whom a departmental inquiry regarding the murder of Muhammad Sharif alias Jagga the brother of Nawab Din complainant had been held during which Taj Din and Ayub appellants had appeared in defence of the police and were rewarded by grant of commendation certificates and cash rewards.
27. Having carefully considered the two versions of which the one given in the F. I. R. Is rather condensed and the other in' the complaint is more elaborate we have not been able to find any reconcilable conflict in them, the two being by and large identical in material particulars. As such, we do not attach much importance to the first contention raised by the learned counsel for the appellants.
28. Coming to the next contention that the complaint was filed more than four months after the occurrence, we are not prepared to attach much importance to this either. As stated earlier, the version contained in tire complaint is materially identical with the one revealed in the Initial Report in so far as the time of occurrence, number and names of assailants, the respective weapons wielded and used by them is concerned. Again the delay of about 4-- month in the lodging of the complaint is not wholly without explanation. As mentioned in the narrative, being dissatisfied with the attitude of the police, Muhammad Hanif complainant had moved in the High Court Cr. Misc. No. 79-B/ 69 on 10-2-1969 seeking transfer of the investigation which having remained pending for more than three months was dismissed by my learned brother Jamil Asghar, J. On 19-5-1969 as having become infructuous inasmuch as in the meantime, the police had submitted challan in the two cases despite the stay order issued by the High Court. Three days later on 22-5-1969 the complaint was filed by Muhammad Hanif P. W. As regards one month's delay from 9-1-1969 the day of occurrence, to 10-2-1969 the day of moving the transfer application in the High Court it was contend--ed on behalf of the State that the P. Ws. Were arrested in the cross-case under section 307, P. P. C. And it was only on their enlargement that Muhammad Hanif was able to move the transfer application in the first instance. In view of this position we do not attach much importance to this contention of the learned counsel for the appellants either.
29. This brings us to the next point namely that the complaint had some basic and inherent falsities which are fatal to the case. In support of the contention, learned counsel argued (i) that the object of the visit by the complainant and the deceased remained shrouded in mystery, (ii) that visiting the Bakkarmandi on the pretext of realisation of amounts due to the complainant and the deceased from the Commission Agents had no basis on the record, (iii) that the visit having been actuated on the alleged invitation of Mr. Sultan Anwar Sub-Inspector of Police, who was admittedly enemy of the complainant party had no basis either in evidence or in common sense, and (iv) that it would be absurd to conceive that Abdul Aziz alias Jeeja would have greeted the two deceased in the first instance simultaneously exhorting his co-- accused to attack them.
30. So far as the object of visit of the complainant and the deceased on the fateful day is concerned, we do not find anything suspicious about it merely because in the initial report in was referred to as private business in Qila Lachhman Singh and was specifically mentioned as participation of marriage in the complaint. The fact, however, remains that the complainant and the two deceased had been extended from Lahore under the Control of Goondas Ordinance, and confined to Police Station Raiwind. Admittedly, they had sought the permission of Abdul Hamid S. H. O. Raiwind (C. W.
31. 20) to visit Lahore and had presented two applications to him in this regard. He had allowed them to stay away till 7-00 p. m. On the 9th of January 1969. On their failure to return, he registered a case against them. The procedure adopted by them would obviously rule out a sinister motive. If they had wanted to visit Lahore for an unlawful purpose they would have tried to do so in a clandestine manner either with the connivance of the local police or by trying to hoodwink it.
32. Participation in a marriage party mentioned in the complaint as a pretext of the visit would be very much a private errand as mentioned in the initial report. Explan--ation offered by the P. Ws. At the trial to the effect that they had visited Qila Lachhman Singh in order to persuade Imam Bakhsh to join the marriage party would not be of much consequence. It was strenuously contended by the learned counsel for the appellants that the complainant's claim that about Rs. 90,000 were due to them from Abdul Aziz alias Jeeja and others of the Bakkarmandi, has no basis on the record, that the register Exh. P. B. And the statement of accounts Exh. P. B. / 1 did not lend support to this claim, and that at any rate Abdul Aziz alias Jeeja appellant did not owe anything to the complainant and the deceased as admitted by Ilam Din P. W. 5.
33. Having considered the arguments raised by the learned counsel we are not persuaded to agree with him of the reasons that there is ample evidence both oral and documentary to establish that Nawab Din complainant and Elahi Bakhsh deceased had a joint business in Bakarmandi. Receipt Exh.P. A. Clearly shows that on the 7th of November 1965 Elahi Bakhsh had paid a sum of Rs. 2,000 to Siraj Din executor as price of malbah of the Commission Agents' booths in the Bakarmandi.
34. Obviously, again we find of reason to disbelieve the P. Ws. That after the murder of Muhammad Sharif alias Jagga brother of Nawab Din complainant and their externment from Lahore and confinement on Raiwind on conviction under the Control of Goondas Ordinance, they were constrained to give up their business in fact, the statement of Munshi Ilam Din P. W. 5 who had merely worked as munshi of the deceased for 4/a years and was examined to prove the statement of accounts Exh. P. B./I and Exh. P. B/2 but having refused to support the prosecution case was declared hostile and had gone wholeheartedly to support the defence version clearly admitting that on 3-5-1965 Elahi Bakhsh had to recover a sum of Rs. 35,137 from different customers, even otherwise a perusal of the register Exh. P. B. And the statements Exh. P. B./1 and P. B./2, would clearly indicate that the complainant andhe deceased have had business dealings with other com-- missionagents and had also to recover some amounts from Department and possibly also owed some amounts to some of them. Thus, there seems to be nothing wrong or improbable about the declared object of their visit to the Bakarmandi. Of course, the assertion made in the complaint by Muhammad Hanif that the visit was actuated on invitation of Sultan Anwar S. H. O. Nawankot, does not appear to be convincing for the reasons, firstly, that even it had no mention in the F. I .R secondly that the said Sultan Anwar Sub-Inspector of Police was the supporter of medical Inquiry held in regard to the death of Muhammad Sharif alias Jagga and as such he could not be expected to use his good offices for the complainant party unless there had been- a specific rapprochement of which there is no indication on the record and lastly, the statement of Faqir Muhammad that he happened to meet Sultan Anwar Sub-Inspector of Police near Bus Stand Yateemkhana, when the latter conveyed to him the message which does not carry conviction.
35. As regards the so-called greeting allegedly extended by Abdul Aziz in the first instance, we are not inclined to attach much importance to it inasmuch as, if believed, it would be merely a sarcastic greeting followed by immediate exhortation to attack.
36. As a result of the above discussion, we see nothing improbable in so far as object of the visit of the complainant and deceased to the Bakarmandi and its time is concerned, inherent infirmities regarding the actual occurrence, we will deal with it presently. However, before considering this aspect of the matter it appears necessary to examine some of the contentions raised on behalf of the complainant in regard to the attitude of the local police which according to the complainant have gone whole heart--edly to save the appellants and spoil the prosecution case. It is in evidence that Sultan Anwar, S. H. O. Police Station Nawankot was a member of the police party which in the year 1968, had killed Muhammad Sharif alias Jagga brother of Nawab Din the first informant and uncle of Muhammad Hanif complainant which led to the institution of a Judicial Inquiry. Taj Din and Ayub appellants had appeared in support of the police version. Admittedly, they were rewarded with cash rewards as well as commendation certificates by the police authorities for assisting police in connection with the encounter with Jagga, as conceded by Sultan Anwar (C. W. 17). In the circumstances, therefore, he could be expected to have a soft corner for them. But the rather bating aspect of the matter is that in spite of this back-- ground of hostility with the members of the complainant party who after the death of Jagga were declared Goondas and externed from Lahore, Nawab Din does not appear to have hesitated even for a moment to lodge the report with the same Sub-Inspector of Police who was according to him, none else than one of the murderers of his brother Jagga. There as nothing to indicate that the complainant party had immediately taken exception to the con--duct of investigation by this police officer who, surprisingly enough had made a gesture of goodwill having used his good offices to persuade the defaulting commission agents to pay the amounts due from them to the complainant and the deceased. Subsequently, it was alleged in the complaint that Sultan Anwar Sub-Inspector of Police had, in fact, made this a pretext to procure attendance of the complainant and the deceased in the Bakarmandi where he had already conspired to get them killed. As stated earlier there is no convincing evidence that the Sub-Inspector of Police had sent a message through Faqir Muhammad driver, secondly it does not stand to reason that in the background of previous bad blood and personal hostility of the Sub-Inspector the com--plainant and the deceased who were not simpletons should have fallen into the trap laid for them. Notwithstanding this however, one cannot avoid an impression that the local police had gone very much out of the way to help the accused by placing four of them in Col. No. 2 on the basis of unconvincing path-work of so-called evidence of alibi which would be easily procured in every case and yet hardly impressive even without the blessings of the police once if it were prepared to entertain and accept the same. The plea taken by Qayyum and his father Abdul Aziz alias Jeeja that they had gone to Texali Gate to the house of in-law of Qayyum for bringing his newly married bride has hardly anything to commend.
37. Shafiq took inconsistent positions during the inquiry and trial. Ayub pleaded innocence and absence on the ground of illness. It does not stand to reason that if the first informant, the two deceased, complainant and the driver had come on a killing spree or the rather dangerous mission of attacking their enemies, they would not have come fully prepared to take' the initiative, launch a surprise attack. Even if they had suddenly met with an unexpected resistance they should have at least done some damage to the members of the accused party none of whom received even a scratch. In the circumstances while being fully conscious of the fact that the onus to prove its case lies on the prosecution, wehave as hesitation in straightaway discarding the police version.
38. It is in evidence that the complainant and other members of the Gujjar party had earned a good deal of notoriety as indicated by the death of Muhammad Sharif alias Jagga in a police encounter and the externment of the complainant and the two deceased from Lahore on conviction under the Control of Goondas Ordinance. No wonder therefore that they were persona non grata with the commission agents of Bakarmandi none of whom appears to have a soft corner for them. On the other hand four prominent commission agents and office-bearers of the Union and the Federation of Commission Agents had submitted application Exh. C. W. 15/A to the Minister for Interior, Government of West Pakistan in support of the police version which in substance was that Taj Din and Shafiq appellants had fired at Elahi Bakhsh and Khuda Bakhsh in exercise of right of private defence when they accompanied by Nawab Din, Muhammad Hanif and Faqir Muhammad had attacked them with fire-arms. It is in evidence that although statements of as many as 332 persons were recorded during the investigation of this case, yet not a single person came forward to support the complainant's case. There are other circumstances which also clearly indicate the partnership of the Investigating Officer. As stated earlier, a perusal of the recovery memo. Exh. P. F.
39. Leaves one in no manner of doubt that the reference to a ~ Pepsi Cola Advertisement Board was subsequently interpolated in Exh. ?. F. Further support is lent to this view by the statement of Mohsin Ahmad C. W. 19, a photographer who had admittedly seen the Board on 11-1-1969 though according to the recovery memo. Exh. P. F. It had already been taken into possession by the police on 9-1-1969.
40. Again not a single empty cartridge was recovered from near the dead bodies, as one would normally expect it to be present in case the deceased and their companions had actually started firing and continued for sometime as alleged. Lastly, it may be observed in this context that the choice of 3-45 p. m. As the alleged time of the assault when the Bakkar Mandi was in full swing was most unhappy. Lastly, the pistol recovered from Taj Din appellant, Exh. P. A. Was never sent to the Fire-arm Expert.
41. As a result of the above discussion we have come to the inevitable conclusion that the police has been far from being fair and neutral, and that the police version has nothing to command itself. It may be observed that in case this version were to be accepted, the finding given by the learned trial Judge that Taj Din and Shafiq appellants had exceeded in the exercise of right of private defence, would not be maintainable is the circum--stances of the case. If five persons were admitted to have come armed with deadly weapons with a view to attack their enemies, the latter placed in such a predicament of imminent danger to their lives would perhaps be justified in killing two of them.
42. This brings us to the last contention regarding the merit or otherwise of the complainants case found to be established at the trial. As detailed earlier, the version was challenged on th ground that not a single disinterested witness came forward to support the complainant's case although the occurrence took place in the most populous part of the city, that the case rested on the evidence of three interested-cum-hostile witness namely, Muhammad Hanif P. W. 2, Nawab Din P.
43. W. 3 and Faqir Muhammad P. W. 4, that the prosecution version was in conflict with the medical evidence, that the occurrence had not taken place in the manner alleged and at least the possibility persons who belong to different families and are atlogger head with each other cannot be excluded.
44. While being fully conscious of the fact that the report was promptly lodged at the police station by Nawab Din giving eye--witnesses account of the occurrence and the fact that Muhammad Hanif, Nawab Din and Faqir Muhammad were challaned in the cross-case which implied the admission of their presence at the spot, we see considerable force in the contention raised on behalf of the appellants. It is a judicial truism that the onus to prove its case lies on the prosecution namely the complainant in the instant case. The first hurdle in the way of the complainant is the irreconcilable conflict between the ocular testimony and the medical evidence. Dr. Nusrat Ullah who had performed the post-mortem examination of the bodies of Elahi Bakhsh and Inayat deceased had clearly excluded the use of pistol, revolver or rifle in the case of Elahi Bakhsh deceased while two injuries on the person of Inayat were found to have been caused by a pistol which also excluded the use of a rifle. Two of the appellants, namely, Shafiq and Ayub Ghori were armed with rifles. The conflict was sought to be explained on behalf of the State on the ground that it might have been the result of a bona fide mistake of perception which in the circumstances of the case is based on the testimony of not one but three interested cum-hostile witnesses and as such cannot be accepted, Thus, Ayub who was armed with a rifle would be entitled to benefit of doubt. The case of Shafiq the only other appellant armed with a rifle is rather distinguishable. It was contended on his behalf that he was mentioned as Rafiq in the F. I. R. And as such might be a different person. There is no force in this contention. In the initial report he was mentioned as Rafiq, in the supplementary statement of Nawab he was mentioned as Shafiq alias Fiku. According to the police version, it was this Shafiq alias Fiku who had killed Elahi Bakhsh deceased while trying to defend Taj Din. Although he denied his presence, at the spot during inquiry, yet did not press this position at the trial. 1n the circumstances, his case is distinguishable from that of Ayub. The next point of apparent conflict 'between the medical evidence and ocular evidence is that according to the latter, the injuries of Elahia which were pellet injuries indicating the use of a gun were obviously fired from a close range causing wounds of exit. Some pellets and a wad were also recovered supporting much shorter distance from the one alleged by the complainant. This could. Perhaps be explained away on the ground that the witnesses may not be expected to be quite precise in their estimate of relative distances. The only accused who allegedly weilded a gun was Abdul Qayum and as such he may be found to have used the same in killing Elahia deceased. As regards Inayat deceased, according to the doctor the two injuries sustained by hire watt caused by a pistol. Both the injuries had wounds of entry as well as of exit. Of the appellants Khuda Bakhsh and Taj Din were alleged armed with pistols. According to the police version Taj Din had fired in exercise of right of private defence and was sent up under section 304, P. P. C. This position is supported by the statement of C. Ws.
45. Who also claim to be the eye-witnesses. In this view of the matter participation of Khuda Bakhsh Ghori would also become rather doubtful.
46. As regards Abdul Aziz alias Jeeja he is a 62 years old man and only a lalkra attributed to him. He would also tie entitled to benefit of doubt as the statements of eye-witnesses cannot be implicitly relied upon. He is on bail and stands discharged of the bail-bonds, having been acquitted.
47. On the basis of the above analysis we are left with the case of Shafiq alias Fiku who according to complaint version had used the rifle which was otherwise falsified by the medical evidence and according to the police version had fired in self-defence. Next is the case of Qayum who too was placed in Col. No. 2 by the police was even excluded by the C. Ws. According to the complainant he was the solitary accused armed with a gun which had been fired. The use of gun stands established by the distance of gunshot injuries on the person of Elahia deceased. Lastly we come to the case of Taj Din who, according to the com--plainant version was armed with a pistol to that extent it falls in line with the police version. The use of pistol attributed to Tai Din is established by the pistol shot injuries sustained by Inayat deceased. The question thus left to be determined however, is whether on the basis of the testimony of Hanif complainant P. W. 2, Nawab Din the first informant P. W. 3 and Faqir driver P. W., who are admittedly near relations of the deceased and inimical to the Ghoris for having supported the police version in the judicial inquiry pertaining to the death of Jagga the conviction of these three persons can be upheld in accordance with the accepted principles of administration of criminal justice.
48. Although unfortunately two precious lives were lost in the occurrence yet the simple answer to the above question would be in the negative. In view of the facts and circumstances of the case as discussed earlier we are clearly of view that the principle of separating the grain from the chaff has to be invoked which too becomes very difficult in the circumstances of the case. As would be clear from the foregoing discussion, in the process of sifting we find more chaff than grain. Accordingly, the convictions cannot be safely upheld in accordance with the settled principles of administration of criminal justice. Reliance may be placed in this regard on Ghulam Muhammad and others v.
49. Crown (PLD 1963 SC 25) and Thoba and another v. The State (PLDI969SC44). We are thus driven to the inescapable conclusion that the convictions are not sustainable.
7. As a result of the above discussion, we allow the appeal, set aside the convictions and sentence of the appellants and direct that they may be released from jail if not required in any other case.
50. The Murder Reference and the Revision Petition fail and are hereby dismissed.