FAZAL KARIM, J: - The appellants, Dost Muhammad, Ghulam Farid and Nazar Muhammad, have appealed against their conviction and sentence recorded by a judgment of the learned Special Judge under the Special Courts for Speedy Trials Acts, 1987, Faisalabad, dated 12-1-1988, convicting them under section 302 read with Section 149 of the P.P.C. On two counts and sentencing Dost Muhammad and Ghulam Farid to death, fine of Rs.20,000 and in default R.I. For five years on each count and sentencing Nazar Muhammad, appellant, to imprisonment for life, fine of Rs.10,000 and in default three years R.I. On each count. Full of the amount of fine, if recovered, was directed to be paid to the heirs of the deceased persons, Zulfiqar and Sarfraz. The sentences of Nazar\ Muhammad, appellant, were directed to run concurrently.
2. The appellants, Dost Muhammad, Ghulam Farid and Nazar Muhammad, are real brothers; they are sons of Wali Dad; the deceased persons, Zulfiqar and Sarfraz, were also real brothers; they were sons of Muhammad Nawaz.
3. Also tried with the appellants were four other accused persons, Haji Zulfiqar, Talib Hussain, Daim and Muhammad Akram. Haji Zulfiqar was an uncle of the appellants, Dost Muhammad, Ghulam Farid and Nazar Muhammad; Talib Hussain accused was a collateral of the appellants; the accused persons, Daim and Muhammad Akram, were not related to the appellants or to Haji Zulifqar and Talib Hussain. They were acquitted by the same judgment of the learned Special Judge.
4. This will also dispose of the State Appeal No. 84 of 1988; it is directed against the acquittal of Haji Zulfiqar, Talib Hussain, Daim and Muhammad Akram. By an order of this Court dated 2-4-1988, the appeal against Haji Zulfiqar and Talib Hussain was dismissed but was admitted against Daim and Muhammad Akram, accused persons.
5. The gruesome tragedy resulting in the murder of Zulfiqar and Sarfraz occurred at about 4-00 a.m. On 25-11-1986 at bus stop Chak No. 684/25/GB, when the deceased persons were traveling by Bus No.FDF-1331 on their way to their residential place, viz. Chak No. 749/GB. The place of occurrence was about 12 kilometers from Police Station Pir Mahal and the incident was allegedly reported to Manzoor-ul-Haq A.S.I. (P.W.13) at the bus-stand of Chak No.674/15-GB at 5-15 p.m. On the same day. The statement of Wali Dad (P.W.12) is Exh.P.S. And the formal F.I.R. Is Exh.P.S./1.
6.The history of the tragedy dates back to the mid-fifties when Muhammad Nawaz, father of the deceased persons, Zulfiqar and Sarfraz, was killed and Wali Dad, father of the appellants, Amir, father of Talib Hussain accused and others were challaned for murder. They were tried and acquitted. To avenge the murder of the said Muhammad Nawaz, Wali Dad, father of the appellants, Dost Muhammad, Ghulam Farid and Nazar Muhammad, and one Ahmad, both residents of Mauza Nawab Booti, were killed on 3-2-1968. That incident was reported vide F.I.R. Exh.P.B. For their murder, as many as 14 persons were challaned; they included Zulfiqar and Sarfraz deceased persons in this case and Muhammad Azam (P.W.13). Of the 14 accused persons, five were acquitted by the trial Court, seven were sentenced to imprisonment for life and two, namely, the deceased persons, Zulfiqar and Sarfraz, were sentenced to death. On appeal, all the accused persons were acquitted by the High Court but the judgment of the trial Court was restored by the Supreme Court. It is in evidence that the death sentence of the deceased persons, Zulfiqar and Sarfraz, was commuted to life imprisonment by a Presidential Order and that the deceased persons, Zulfiqar and Sarfraz, had come out of jail 6 or 7 years before this occurrence.
7. As observed above, the deceased persons, Zulfiqar and Sarfaraz, were residents of Chak No. 749/GB, the first informant Wali Dad (P.W.12) was a resident of Chak No. 747/GB, the distance between the two chaks being about a mile. The appellants and their relatives were residents of Mauza Nawab Booti; while the Chak of the deceased persons and Wali Dad was on Kamalia Road, Mauza Nawab Booti was on Sadhnai Road; the two roads run in opposite directions.
8. The prosecution case is that on 25-11-1986, Wali Dad P.W. Had gone to Toba Tek Singh to obtain the Patta Malkiat of his land. He reached the District Courts premises at about 11-00 a.m. And after doing the needful, boarded a bus for Pir Mahal. The deceased persons, Zulfiqar and Sarfraz, were already sitting in the bus on the rear seats. From Toba Tek Singh, they traveled upto Pir Mahal, where they boarded bus No. FDA-1331 for Darbar Sindhalianwali. The deceased persons and Muhammad Azam P.W. Sat on the rear seats of the bus. Sarang P.W. (he was not examined at the trial) was sitting on one of the front seats. Wali Dad P.W. Also sat on one of the front seats, with Sarang P.W. When the bus reached the bus stop of Chak No. 674/15-GB, it stopped and some of the passengers left the bus. One of the seats near Wali Dad P.W. Was vacated by one of the passengers and he asked Muhammad Azam P.W. To occupy that seat. In the meantime, the seven accused persons, Haji Zulfiqar, Dost Muhammad, Ghulam Farid, Nazar Muhammad and Talib Hussain, armed with guns and Daim and Muhammad Akram armed with pistols, entered into the bus, Daim and Akram from the front door of the bus and the rest of them from the rear door of the bus. Daim and Muhammad Akram told the driver and the passengers not to move. Ghulam Farid fired his gun hitting Zulfiqar deceased in the left side of his neck. Dost Muhammad fired hitting Sarfraz deceased in his left arm and left side of the chest. Both fell down. Then, Haji Zulfiqar and Nazar Muhammad, accused persons, fired their guns; the shot pierced through the rear glass of the bus. Thereafter Ghulam Farid, Dost Muhammad and Nazar Muhammad accused persons dragged the deceased persons out of the bus. Seeing all this, the driver ran away. Daim and Muhammad Akram accused persons also left the bus. Zulfiqar had expired in the bus. Sarfraz was alive. Talib Hussain accused placed the barrel of his gun on his forehead and fired killing him instantaneously.
The accused persons then lifted the dead bodies in order to take them away but could not do so because several persons had collected. They left the dead bodies in a watercourse adjacent to the road and ran away.
9. Leaving Sarang and Muhammad Azam P.Ws. With the dead bodies, Wali Dad P.W. Proceeded to Police Station Pir Mahal. On the way, he met Manzoor--ul-Haq A.S.I at the bus stop of Chak No. 674/15-GB and before him, he made statement Exh.P.S.
10. The post-mortem examination of the dead bodies was performed by Dr. Ghulam Dastgir (P.W.5) on 26-11-1986. The dead body of Zulfiqar had the following three wounds:- (1)An inlet wound 3 c.m. 3 on the left side of the neck, 2 c.m. Back to the left ear, 5 c.m. Forward to the occipital point of the scalp. Tatooing and singeing of hairs were present. The edges of the wound were inverted.
(2)Five outlet wounds with everted edges on the right side of the neck. Each were 1 c.m. x 1/2 c.m., just below the right ear.
(3)Two outlet wounds 2 c.m. x 1.5 c.m., 1.5 c.m. x 1/2 c.m. Ob the right side of the neck, posterior to the angle of mandible, on the lower part of the pinna, edges were everted.
11. The doctor found one pellet between the two outlet wounds. All the wounds were ante-mortem and had been caused with fire-arms `within the distance of about one yard'. Injury No.1 was the inlet wound and injuries Nos. 2 and 3 were the outlet wounds. As a result of the injuries, atlas and axial vertebrae were perforated and fractured, spinal cord was cut and perforated and vessels of the left side of the neck were torn and perforated. In the opinion of the doctor, the cause of death was haemorrhage and shock resulting from the injuries, which were, sufficient to cause death in the ordinary course of nature. Tune between injuries and death was immediate and between death and post-mortem examination 17 hours. Exh. P.D. Is the carbon copy of the post-mortem examination report.
12. On the dead body of Sarfraz deceased, the doctor noticed the following injuries:- (1)A lacerated wound 14 c.m. x 5-1/2 c.m. x muscle deep on the medial and front side of left forearm, on the left elbow and left upper arm, medial border was showing tattooing and singeing of the hair.
(2)A lacerated wound 2.5 c.m. 1 c.m. x skin deep on the .Left upper arm, 1 c.m. Above the injury No.1.
(3)A lacerated wound half c.m. x half c.m. On the medial side of left upper arm, just medial to the injury No.2.
(4)7 inlet wounds in T-shape lying in the diameter of 12 c.m. On the left side and front side of the chest and on the interior axillary border. Edges were inverted.
(5)Three swellings 1/2 c.m. x 1/2 c.m. On the outer side and right side of front side of the chest. These swellings contained some hard foreign bodies. On the simple incision 3 pellets were detected from these swellings.
(6)One hole inlet inverted edges 2 c.m. x 1-1/2 c.m. x penetrating into scalp on the right temple.
(7)5 inlet wounds with inverted edges around the injury No. 6 lying within the diameter of 4 c.m.
The doctor found the 3rd and 4th intercostal punctured and the sternum fractured, fourth rib was fractured and left lung and pericordiam were perforated and right lung was punctured through and through. Two pellets were found outside the thorax. All the damage was done by injury No.4.
Scalp was found congested and perforated. A wad and six pellets were found to the right cerebrum. In the opinion of the doctor, cause of death was shock caused by the injuries, which were sufficient to cause death in the ordinary course of nature individually and collectively. Time between injuries and death was immediate and between death and post-mortem 18 hours. Exh.P.E.
Is the carbon copy of the post-mortem examination report.
13. The case was investigated by three Investigating Officers, Manzoor-ul---Haq, A.S.I. (P.W.14), Zafar A.I Inspector (P.W.15) and Talib A.I S.I. (P.W.16). Manzoor-ul-Haq A.S.I. Had reached the spot after recording the statement Exh.P.S. Of Wali Dad P.W., had prepared the injury statements and inquest reports, when War A.I Inspector reached and took over the investigation. Zafar A.I Inspector took blood-stained earth into possession from inside the bus and made it into a parcel vide memo.
Exh.P.H. He also secured blood-stained earth from the place where Sarfraz was done to death vide memo. Exh.P.I. He found four empties, P.14/1-4, near the bus and made them into a parcel vide memo. Exh.P.K. Two pairs of shoes of the deceased persons were also taken into possession by him.
He also secured blood-stained earth from a dry watercourse and made it into a parcel vide memo.
Exh.P.J. He took into possession Bus No. FDE-1331 vide memo. Exh.P.M. And had the site plans Exh:P.A.
And Exh.PA./1 prepared from the Patwari Muhammad Tahir P.Ws. He was transferred on 27-11-1986 and from then onwards the investigation was carried out by Talib A.I S.I. The latter arrested Haji Zulfiqar, Dost Muhammad, Ghulam Farid and Talib Hussain accused persons on 5-12-1986. On 9-12- 1986 Ghulam Farid accused led to his house in Chak Nawab Booti and produced .12 bore gun P.15 alongwith its licence P.16 it .Vas made into a parcel vide memo. Exh;P.N. He arrested Nazar Muhammad accused on 5-12-1986; at that time, he was carrying gun P.17. He took the gun into possession alongwith its licence P.18 vide memo. Exh.P.O. On 17-12-1986, Dost Muhammad accused led to his house and produced .12 bore gun P.19, which was also taken into possession. On 22-12- 1986 he raided the Dera of Ghulam Farid accused and arrested the accused persons Daim and Muhammad Akram; from Daim, .12 bore carbine P.20 alongwith three live cartridges P.21/1-3 was taken into possession vide memo. Exh.P.P. And from the possession of Muhammad Akram accused .12 bore carbine P.22 alongwith three live cartridges was taken into possession vide memo. Exh.P.O.
The accused persons, Daim and Muhammad Akram, were sent to judicial lock-up on 23-12-1986 after obtaining the necessary orders from the Ilaqa Magistrate. According to Talib A.I S.I. At that time, he had requested by the writing Exh.P.R./5 that the said accused be directed to conceal their faces. Later on 7-1-1987, an identification parade for the identification of these two accused persons was held on his application Exh.P.R. Under the supervision of a Magistrate.
14. It is noteworthy that during the course of investigation, Haji Zulfiqar, Talib Hussain and Dost Muhammad accused persons had pleaded alibi; is support of this plea, Haji Zulfiqar and Talib Hussain accused persons produced evidence but Dost Muhammad, appellant, did not lead any evidence. On the basis of the evidence so produced, Haji Zulfiqar and Talib Hussain accused were declared innocent by the S.H.O., this finding was affirmed by the later Investigating Officers also, namely, D.S.P. Bashir Hussain D.S.P. Headquarters Muhammad Nawaz and A.S.P. Naseer Durrani.
15. In support of its case, the prosecution called 16 witnesses, including Dr. Ghulam Dastgir (P.W.5) and the three Investigating Officers and the two eye---witnesses, Walt Dad (P.W.12) and Muhammad Azam (P.W.13).
16. Of the remaining P.Ws. The evidence of Waris A.I Constable (P.W.6), Abdul Hafeez Head Constable (P.W.7), Muhammad Bakhsh (P.W.8), Khizar Hayat (P.W.9), Riaz Hussain (P.W.10) and Ch. Mukhtar Ahmad, Magistrate 1st Class (P.W.11) had a material bearing on the guilt of the accused persons. Muhammad Bakhsh (P.W.8) had witnessed the taking into possession of the crime empties from the spot of occurrence; he was also a witness to the recovery of blood-stained earth from that spot. Khizar Hayat (P.W.9) claimed to have witnessed the recovery of gun from Ghulam Farid, Nazar Muhammad and Dost Muhammad, appellants. Riaz Hussain was witness to the arrest of Daim and Muhammad Akram accused persons and to the recovery of carbines from them.
Abdul Hafeez H.C. (P.W.7) stated that the sealed parcels containing the guns and the empties had been deposited with him and he had kept them safely and had given them to Waris A.I, Constable for being delivered at the office of the Forensic Science Laboratory, Lahore. Waris A.I, Constable said that he had received four sealed parcels from Abdul Hafeez, H.C. On 30-11-1986 and had delivered one of them, containing the empties at the office on the Forensic Science Laboratory, Lahore safely.
On 30-12-1986, he had received five more sealed parcels from Abdul Hafeez H.C. And had delivered them also safely at the office of the Forensic Science Laboratory, Lahore.
17. Nothing, however, turns upon the evidence of the recovery of the guns, carbines and the empties, for, the prosecution did not place on the record the opinion of the Fire-arm Expert, the inference being that the opinion of the Fire--arm Expert was not favourable to the prosecution.
18. Ch. Mukhtar Ahmad, Magistrate 1st Class (P.W.11) had supervised the identification parade held in District Jail, Jhang, on 7-1-1987 for the identification of Daim and Muhammad Akram accused persons. According to his report Exh.P.R./4, the P.Ws. Wali Dad, Muhammad Azam and Sarang, had correctly identified `the :aforesaid accused namely Daim and Muhammad Akram'. Before him, the accused persons had objected that the police had shown them to the witnesses.
19. The appellants and their co-accused denied in their statements under section 342 of the Cr.P.C.
As also in their statements on oath, that they were, in any way, responsible for the murder of Zulfiqar and Sarfraz. According to them, they had been falsely implicated on account of enmity. As to the recovery of guns, Ghulam Farid and Nazir Muhammad, appellant, stated that they had appeared before the police on the 3rd day of the incident and had produced their licensed guns P.15 and P.17 respectively. Dost Muhammad, appellant, denied the recovery of the gun P.19 from him.
20. They did not produce any evidence in defence.
21. The learned trial Judge found that Zulfiqar accused had been attributed only one ineffective shot and nothing incriminating had been recovered from him. As to Talib Hussain, the learned trial Judge observed that the Investigating Officers had found him innocent and no gun had been recovered from him. He was attributed a gun shot injury to Sarfraz deceased but in the view of the learned trial Judge, `there was no fun on the part of Talib Hussain accused to place the barrel of his gun on the right side of the forehead of Sarfraz deceased while firing at him'. This seemed to the learned trial Judge `to be deliberation on the part of the complainant party to involve him in the case'. He, therefore, acquitted them `giving them at least the benefit of doubt from all the charges inter alia for the reason that no corroborative piece of evidence is available against these two accused to the ocular evidence of Wali Dad P.W.12 and Muhammad Azam Bakhsh P.W.13, who are admittedly interested witnesses'. So far as the motive was concerned, that was, so held by the learned trial Judge, `far-fetched qua these two accused and as such the same cannot be read into corroboration to the ocular evidence referred above'.
22. Daim and Muhammad Akram accused persons had, in the opinion of the 'learned trial Judge, no motive to join hands with the remaining accused persons; they had not been attributed any overt act either. In the circumstances of the case, their identification by the three eye-witnesses too did not advance the prosecution case against them.
23. Regarding the appellants, Ghulam Farid, Dost Muhammad and- Nazar Muhammad, the learned trial Judge believed the testimony of Wali Dad and Muhammad Azam, P.Ws., which, so held the learned trial Judge, received corroboration from the `evidence of motive which is even admitted by these three accused' and the medical evidence. He also believed the recovery of guns from them and for that purpose, relied upon the testimony of Khizar Hayat S.I. (P.W.9) and Talib A.I (P.W.16).
Though the report of the Fire-arm Expert did not support the case of the prosecution and it was for that reason not tendered in evidence `but nevertheless the recovery of the guns from these three accused goes to prove a long way that the guns recovered from Ghulam Farid and Nazar Muhammad accused were licensed, while gun recovered from Dost Muhammad accused was unlicensed and their corroborative value could not be ruled out altogether though the same might not be a strong piece of corroborative evidence'. Being mindful of the fact that Wali Dad P.W.12 and Muhammad Azam P.W.13 have implicated Haji Zulfiqar, Talib Hussain, Daim and Muhammad Akram accused, the learned trial Judge proceeded to sift the grain from the chaff and held that the case against the appellants was proved.
24. As we saw earlier, in the incident of murder which took place on 3-2--1968 (Exh.P.B.), two persons, Wali Dad, father of the appellants and Ahmad son of Rajadah, both residents of Mauza Nawab Booti, were killed. 14 persons were tried for the murders, including the deceased persons of this case, Zulfiqar and Sarfraz, and Muhammad Azam P.W. Zulfiqar and Sarfraz were sentenced to death; seven other accused persons were sentenced to life imprisonment. The deceased persons had their death sentence commuted and came out of jail six or seven years before this occurrence. Thus, the appellants were not the only persons who had on account of that incident, the motive to kill the deceased persons; the relatives of Ahmad son of Rajadah had as much a cause for taking revenge as the appellants had. However, that may, if the appellants had a reason to kill the deceased persons, equally strongly the P.Ws. Had a cause for falsely implicating them.
25. The learned trial Judge rightly observed that Wali Dad and Muhammad Azam P.Ws. Were interested witnesses. Wali Dad was a maternal-uncle of the deceased persons and the wife of Azam P.W. Was a sister of the deceased persons. A daughter of the first wife of Muhammad Azam P.W. Was also the wife of Zulfiqar deceased. Besides being interested witnesses they were also chance witnesses. They and the deceased persons had not gone together to Toba Tek Singh or Pir Mahal; they had gone on separate errands and it was by chance that Wali Dad and Muhammad Azam P.Ws. Had traveled in the same bus as the deceased persons had. Muhammad Azam P.W.
Was himself an accused person in the case, in which Wali Dad and Ahmad son of Rajadah were the deceased persons. The impression one gains from the evidence of Wali Dad and Muhammad Azam P.Ws. Is that though the place of incident was a bus stand at a distance of about four or five miles from their residential houses, yet the accused persons knew of the presence of the deceased persons in the bus. And if that be the fact, then they also could not have been ignorant of the presence of Muhammad Azam P.W. The significance of this fact lies in this that against Muhammad Azam P.W., the accused persons had the same grievance as they had against the deceased persons, Zulfiqar and Sarfraz. Accordingly, if Muhammad Azam P.W. Was present in the bus, they would not have spared his life.
26. There is, therefore, no question that the testimony of Wali Dad and Muhammad Azam P.Ws.
Required, before it could be acted upon, to be corroborated. We are unable to agree with the learned trial Judge that in the circumstances of the case, the alleged motive had any corroborative value. The recovery of guns from the appellants too did not lend any support to the testimony of Wali Dad and Muhammad Azam P.Ws. In truth, far from corroborating their testimony, the inference which clearly flowed from the Fire--arm-Expert's report was that they had not been used in the commission of the offence. As observed above, the guns P.15 and P.17 were the licensed guns of Ghulam Farid and Nazar Muhammad, appellants. As to the recovery of gun from Dost Muhammad, appellant there was the evidence of Khizar Hayat (P: W.9), who was not a resident of the locality; he belonged to a place 16 or 17 miles from the place of recovery. The medical evidence had also no supporting value, for, the real question was who had caused the injuries resulting in the death of Zulfiqar and Sarfraz and the injuries were no evidence of that fact. We are, therefore, of the opinion that the evidence, which, in the opinion of the learned trial Judge, could serve as corroborative evidence to the testimony of Wali Dad and Muhammad Azam P.Ws., could not be so used.
27. That brings us to the case of Daim and Muhammad Akram. They had, been ,arrested on 22-12- 1986 and had remained in the custody of the police till the next day when they were produced before the Magistrate. They were not named in the F.I.R. As was rightly observed by the learned trial Judge, they had no reason to join hands with the appellants and their co-accused, Haji Zulfiqar and' Talib Hussain, to cause the death of Zulfiqar and Sarfraz. The record does not show what had led the Investigating Officer to arrest them as the two unnamed culprits mentioned in the F.I.R. As they had remained with the police at the police station, for at least one day, the possibility of their having been shown to the PWs. Could not be excluded. We, therefore, agree with the learned trial Judge that the case against them was not free from reasonable doubt.
28. For the foregoing reasons, we accept the appeal of Dost Muhammad, Ghulam Farid and Nazar Muhammad, appellants set aside their conviction and sentence-and acquit them. They shall be set at liberty forthwith unless required in any other case.
29. The State appeal against Daim and Muhammad Akram accused persons is also dismissed.
SA./D-39/L