SARDAR MUHAMMAD DOGAR, J.--Hameed Akhtar, aged 35 years, his brother Muhammad Jamil, aged 37 years and Inayatullah, aged 80 years, their father, were tried by Additional Sessions Judge, Sahiwal, for having murdered Muhammad Aslam, at 7 p.m. On 9-7-1981, in the fields, in the area of Chak No. 110/12-L, at a distance of two miles from Police Station Chichawatni. The learned trial Judge vide judgment dated 12-3-1986, convicted all of them under section 302/34, P.P.C. And awarded sentences as follows:- Hameed Akhtar and Muhammad JamilDeath Inayatullah Imprisonment for life.
Each of them has also been directed to pay a sum of Rs.15,000 as compensation to the legal heirs of the deceased.
2. F.I.R. (Exh. P.G.) was recorded at Police Station Chichawatni at 8 p.m. On 9-7-1981 by Muhammad Bakhsh, S.I./S.H.O. (P.W. 10), on the statement of Muhammad Hassan (P.W. 5)
According to F.I.R., the complainant was returning home from his land. On way he saw the deceased and Rehmat A.I P.W., his father, in their cotton crop field. Hameed Akhtar armed with a gun, Muhammad Jamil armed with a pistol and Inayatullah armed with a Sota came there.
Inayatullah told Rehmat A.I that they will take the possession of the land today. Rehmat A.I retorted that they will not allow them to do that---------In the meanwhile Zahid Hussain and Karam Din (given up P.Ws.) also arrived there. Hameed Akhtar fired a shot from his gun which hit Muhammad Aslam on his abdomen. The shot fired from the pistol by Muhammad Jamil also struck him on the abdomen. He fell down after walking a short distance. Whereafter, he was given a Sota blow on the left cheek by Inayatullah. When Rehmat A.I fell on his son, he was given Sota blows by Inayatullah.
The accused threatened the P.Ws. With dire consequences when they tried to stop them. They did not intervene due to fear. Muhammad Aslam died at the spot. The accused went away.
For motive of the occurrence, it is stated therein that full Killa No. 6 and half of Killa No. 15 of Sq. No. 26 were allotted to Ghulam Muhammad ten years prior to the occurrence. Two and a half acres of land of this square was allotted to Rehmat A.I son of Abdullah Arain. The allotments of both the parties expired 2/3 years prior to the occurrence. They filed appeals before the High Court. Rehmat A.I secured stay order but the allotment of Ghulam Muhammad was not restored. Hameed Akhtar obtained allotment of this one and a half acres of land (full Killa No. 6 and half of Killa No. 15) under Poultry Scheme. Hameed Akhtar wanted to get Killa No. 7 also, which was in the possession of Rehmat A.I, even though the crop sown by Rehmat A.I was standing thereon.
3. Muhammad Bakhsh, S.H.O. After recording the F.I.R. Reached the spot. He despatched the dead body for post-mortem examination after preparing injury statement (Exh. P.K.) and inquest report (Exh. P.L.). He collected blood-stained earth during spot inspection. Crime empty (P. 4) lying at the spot was taken into possession vide memo. Exh. P.J. He also prepared the injury statement of injuries of Rehmat A.I P.W. And got him examined. .Muhammad Jamil was arrested by him on 11-7-1981. He led to the recovery of Pistol (P. 5) and live cartridge (P. 6) from his house on 16-7-1981, which were taken into possession vide memo. Exh. P.N.
Hameed Akhtar was arrested by him on 20-7-1981. Licensed gun (P. 7) produced by him at the time of arrest was taken into possession vide memo. Exh. P.O. Alongwith the licence (P. 8).
Inayatullah appeared before him on 13-7-1981 while being on interim pre-arrest bail. He recorded his statement but did not arrest him on that day. He was arrested by Ghulam Qadir, S.I. (P.W. 9) on 20-1-1982.
After completion of necessary investigation challan was put to Court.
4. Statements of ten P.Ws, were recorded at the trial. Positive reports (Exhs. P.O. And P.R.) from the offices of the Chemical Examiner and the. Serologist about stains of human blood on the earth were tendered in evidence. Exh. P.S., report from the fire-arm expert, about the wedding of empty (P.4)-With Pistol (P. 5) was also tendered in evidence.
Karam Din and Zahid Hussain eye-witnesses were given up as having been won over. Muhammad Javid Tariq, Muhammad Habib and Muhammad Aslam P.Ws. Were also given up as won over, while Abdul Khaliq and Abdur r Rashid P.Ws. Were given up as unnecessary.
5. Dr. Allah Nawaz Brohi, who had performed autopsy on the dead body of the deceased on 10-7- 1981 at 10 a.m. Appeared as P.W.
4. He had noted following injuries on the body of the deceased:-- (1)Nine oval shape fire-arm wounds of entry, margins inverted and burnt on lower abdomen, eight wounds were below umbilicus and one above and right, 2 about to umbilicus, full description is that three wounds were on medial line below umbilicus, three wounds on left and below the umbilicus and one above and right to the umbilicus. Total area covered by these wounds was 16 c.m. x 14 c.m.
Oval shape wounds were 1 c.m. x 3/4 c.m. Each.
(2) Contusion, 5 c.m. x 1-1/2 c.m. On outer and upper part of left arm.
On internal examination, abdominal wall, peritoneious, duodenum, small and large intestines and first lumber vertebra were found injured. Injury No. 1, which was opined to have been caused by a fire-arm, was declared fatal. Probable time between injuries and death was opined to be immediate while time between death and post-mortem was opined to be 12 to 16 hours. Three pellets recovered from the body of the deceased were handed over to the police constable after sealing; the same in a phial.
The same doctor had, on the same day, medically examined Rehmat All P.W. And had noted following injuries on his person:-- (1)A lacerated wound, 1-1/2 c.m. x 1/8 c.m., superficial deep on inner and palmer surface of right thumb.
(2)Swelling, 6 c.m. x 4 c.m. On front and mid of right thigh.
(3)Abrasion, 1/8 c.m. x 1/8 c.m. On the left side of forehead 1-1/2 c.m. Above left eye-brew.
(4)Contusion 15 c.m. x 5 c.m. On the left iliac crest.
All the injuries were declared simple and were opined to have been caused by a blunt weapon.
During cross-examination, he stated that injury No. 1 on the deceased could have been caused from a distance of one/two feet. In answer to another question, he stated that possibility could not be ruled out that the fire-arm injury would have resulted from one fire-shot. He did not rule out the possibility of injury No. 2 having resulted from fall on the ground. He stated that after receipt of injury No. 1, the deceased could hardly have moved to a distance of one or two paces and not beyond that.
6. Nur Ahmad, F.C., who was handed over the parcels pertaining to this case for transmission to the offices of the Chemical Examiner and the Ballistic Expert appeared as P.W.
2. According to him, Ahmad Din, M.H.C. Had handed over to him four sealed parcels pertaining to blood-stained earth, crime empty, a pistol 12 bore and a gun 12 bore for onward transmission to the offices of the Chemical Examiner and Forensic Science Laboratory. He stated that the parcels were returned by officials of those offices with some objections and so he deposited them in the police Malkhana after return. He stated that he was re---entrusted these parcels on 4-8-1981, which he deposited in the concerned offices on 5-8-1981. His statement in this regard has been corroborated by Ahmad Din, H.C. (P.W. 3).
Muhammad Akmal, who had witnessed the taking into possession of blood-stained earth and empty (P. 4) from the spot and had signed the concerned memos. Appeared as P.W.
8. During cross-examination, he admitted that he was son of the complainant and his sister was married to the deceased. He admitted that he had gone to the spot when 25/30 persons had already reached. He also admitted that none of them had signed the memos. In answer to another question, he stated that blood-stained earth was secured from Killa No. 7 of Sq. No. 26. He denied the suggestion that no blood was present in Killa No. 7 of Sq. No. 26. He also denied the suggestion that the dead body of the deceased was lying in the play ground adjoining to Killa Nos. 13 and 14 of Sq. No. 26. According to him, the dead body was lying in the cotton crop field.
Ghulam Qadir, S.I., Crimes Branch, who had partly investigated the case appeared as P.W.
9. He stated that he had conducted the investigation at the spot in the presence of both the parties and had interrogated various persons. He admitted during cross-examination that when the final report was sent firstly by Raja Sarfraz Ahmad, S.P. To the Inspector-General of Police for approval, the D.I.- G., Crimes Branch had returned the same with the objection that Ghulam Abbas, who was stated to be one of the suspects in the commission of crime should be joined in the investigation. He stated that Ghulam Abbas was interrogated by him for four days as a suspect in the case.
7. The ocular account was deposed to by Muhammad Hassan (P.W. 5) and Rehmat A.I (P.W. 7).
Muhammad Hassan repeated the facts given by him in the F.I.R. During cross-examination he admitted that the deceased was his son-in-law while Akmal (P.W. 8) was his son. He gave out that P.Ws. Zahid Hussain and Abdur Rashid were the sons of the brother of his wife. He admitted that Ahmad Hassan (P.W. 6) was his brother and his daughter Mst. Azra Begum was married to Asghar Shakil, who was employed in Water Management Development Department. He admitted that Hameed Akhtar appellant had got a case registered against him for sale and embezzlement of cement of his department, for which he was challaned. He denied the suggestion that he and his relatives had become enemies of Hamid Akhtar on account of that. He admitted that Mst. Sughran Bibi, sister of Hamid Akhtar and Muhammad Jamil appellants was married to Saghir Ahmad Usmani and that his father was murdered, for which his (witness's) brother-in-law, sons of Zahid Hussain and Rashid etc. Were challaned.
Rehmat A.I, father of the deceased, who appeared as P.W. 7, corroborated the statement made by P.W.
5. He also gave details of the land regarding the possession of which the occurrence had taken place.
Both the witnesses denied the suggestions that the deceased had not suffered injuries as a result of two shots or that they had not witnessed the occurrence and had made false statements.
8. Muhammad Bakhsh, S.I., who had registered the case, arrested the accused and during whose custody Muhammad Jamil appellant had led to the recovery of pistol (P. 5), appeared as P.W. 10.
During cross-examination, he admitted that he had not noted in column No. 12 of the inquest report about the use of blunt weapon for causing injuries to the deceased. He also admitted that presence of crime empty (P. 4) at the spot was not mentioned by him in column No. 23 of the inquest report and brief facts of the inquest report given in column No. 24. He admitted that Muhammad Aslam and Habib (given up P.Ws.), the recovery witnesses, belonged to Chichawatni.
In answer to another question, he a stated that it was brought to his notice during investigation that Allah Ditta, Ghulam Abbas and Ibrahim were culprits in this case. He stated that Allah Ditta was arrested by him on 21-7-1981 on being produced by Maqsood Ahmad and Wazir Khan. He stated that if the investigation had remained with him, he would have arrested Ghulam Abbas and Ibrahim also. He denied the suggestion that he had investigated the case in a partisan manner.
9. All the accused during statements under section 342, Cr. P.C. Denied the prosecution case as a whole and pleaded innocence.
Hameed Akhtar appellant stated as follows in answer to the question, "why this case against you and why do the P.Ws. Depose against you"?:-- "I have been falsely involved in this case due to enmity. All the P.Ws. Are related closely with each other and with the deceased. They have deposed against me due to enmity. In fact Aslam deceased had some dispute and quarrel with Allah Ditta, Abbas and Ibrahim. Allah Ditta had fired at the deceased, because the deceased had given a hatchet blow to his companion Abbas during this occurrence in the play ground of the village. Allah Ditta is also facing trial for the murder of Aslam deceased separately in this Court. The police did not intentionally arrest Abbas Hussain, Ibrahim, companions of Allah Ditta accused aforesaid, because the complainant party had got this false case registered against us, therefore, they did not pursue their case against Allah Ditta and his companion, as they thought that their case contained in the F.I.R. Would be spoiled."
All of them made statements on oath also. Documents Exhs. D.B., D.E. And D.F, were tendered in defence.
10. Learned counsel for the appellants after taking us through the evidence, criticised the impugned judgment and contended that the prosecution has failed to prove the motive for the occurrence, that the evidence of recovery-of weapon of offence as well as crime empty from the spot was not worth reliance and that the related, interested and inimical testimonies of P.Ws. 5 and 7 cannot be safely relied upon, without corroboration, for sustaining the convictions of the appellants, particularly, in view of the fact that the police had submitted challan against one Allah Ditta also, who faced the trial separately and also keeping in view the fact that the medical evidence appears to be contradictory to the ocular account. Learned counsel made statement at the Bar that Allah Ditta was acquitted by the trial Court and no appeal or revision had been filed against his acquittal.
11. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that there was no serious enmity between the complainants of the case and the accused warranting false involvement of the appellants. Learned counsel for the complainant vehemently argued that no father and father-in-law would absolve the real culprits of his son or son-in-law to involve innocent persons. According to him, the occurrence was reported promptly and so there was no question of false involvement of the appellants. Learned counsel submitted that the police did not act fairly in this case and wrongly challaned one Allah Ditta for the benefit of the appellants.
12. Before proceeding further, we would like to mention that Inayatullah appellant is stated to have already died.
13. The land comprising Killa No. 7, the possession of which, according to the prosecution, the appellants wanted to take, was never the bone of contention A between Rehmat A.I. Father of the deceased and the appellants. This killa was in possession and allotment of Rehmat A.I since about ten years and he had obtained the same on the expiry of lease by way of filing appeal in the High Court. Hameed Akhtar, who had obtained allotment of the land, which earlier was in possession of one Ghulam Muhammad, had never applied for allotment of Killa No. 7 or any piece of land from the, allotment of Rehmat A.I. The bald allegation, therefore, levelled against the accused that they wanted to forcibly take the possession of Killa No. 7 cannot be accepted as a whole truth. If Hameed Akhtar had any desire of obtaining this land, he would have applied for allotment of the same after the expiry of lease in favour of Rehmat A.I, as he did in the case of Ghulam Muhammad.
In the circumstances, we do not find any substance in the version of the complainant that the occurrence had taken place on account of appellant's intention and desire to take forcible possession of Killa No. 7. Apart from that, it is also worth noticing that none of the witnesses stated that the appellants had come in any symbole manner for taking the possession of the land. In that, they should have come with plough or some other implements to take the possession. They could not have come to occupy the land without any cattle or implements at 7 p.m., particularly so when cotton crop was standing there.
14. None except S.I. Muhammad Bakhsh stated about the recovery of carbine at the instance of Muhammad Jamil appellant. The two witnesses from public named in. This regard did not belong to the place of recovery. They were residents of Chichawatni and were given up as having been won over. The evidence of recovery of crime empty from the spot has been deposed to by interested witnesses. Apart from that, neither the existence of empty at the spot is mentioned in the F.I.R. Nor the same finds mention in the inquest report. In the circumstances, no implicit reliance can be placed on the evidence regarding the recoveries of these two articles. Apart from that, the manner in which the parcels I were kept and despatched to the office of the Forensic Science Laboratory also clearly negates the authenticity of the report of the Ballistic Expert. The learned trial Judge had also ruled out the evidence of recoveries as well as the report from Forensic Science Laboratory, for reasons, which we find are based on evidence on record.
15. As a result of the exclusive of the evidence of motive and the evidence of recoveries, the case of the prosecution rests on the testimonies of the two eye-- witnesses. As noted earlier, one of them is father of the deceased while the other was father-in-law. Some instances of earlier frictions between the families of the complainant and the accused have been brought on record. In that, Hameed Akhtar appellant had got involved a relative of the complainants, who was in service in an embezzlement case and he was facing trial in the Court of Anti-- Corruption Judge. They were pitched against each other in the murder of father of Saghir Ahmad, who was married to the sister of Muhammad Jamil and Hameed Akhtar appellants. Their testimonies regarding the number of shots, which the deceased was fired at, also appears to be doubtful. In that nine oval wounds found on the abdomen of the deceased do not appear to have resulted from two shots as claimed by them. The margins of the wounds were found inverted and burnt, which shows that the deceased must have been fired at from a very close range and had that been the case, the two shots would not have only resulted in making nine entries. The number of wounds received in that case would have been larger than found. Apart from that, the doctor also opined during cross- examination that nine wounds might have resulted from a single shot. The contusion found on the left arm of the deceased contradicts the ocular account in the sense that according to the eye- witnesses Sota blow given by Inayatullah had struck the deceased on the left cheek but no injury was found on the cheek. No explanation has been given about the injury on the arm.
16. We have examined the contention of the learned counsel for the State/complainant that the fact of Rehmat A.I (P.W. 7) having been found injured goes a long way to prove that he was present at the spot and so his testimony cannot be thrown away.
It is noteworthy that all the injuries on his person were opined to have resulted from blunt weapon.
One of them was a lacerated wound, 1-1/2 c.m. x 1/8 c.m. x superficial deep on inner and palmer surface of right thumb, while the other was an abrasion, 1/8 c.m. x 1/8 c.m. The third was swelling and the fourth was contusion 15 c.m. x 5 c.m. It looks improbable that he would have been caused such injuries by the persons who were armed with gun and carbine also. P The injuries were declared simple. He did not get himself examined on the first day, nor on the following morning. He was sent for medical examination on the following day at 12-30 noon. The hospital was not more than two and a half miles from the place of occurrence. It is not the prosecution case that he was given any medical aid prior to that. In the circumstances, we are of the view that mere existence of injuries on his person is no ground to hold that he had suffered those injuries during the occurrence at hostile hands.
18. The reliability and authenticity of the testimonies of the two eye--witnesses also stands diminished to an irreparable extent on account of the fact) that one Allah Ditta was also arrested during investigation and was challaned separately by the police for having committed the murder of the deceased in this case. It would have been a different matter if he had been challaned alongwith the appellants. It could have been assumed/argued in that case that he might also have joined hands with the appellants in the commission of murder. But submission of challan separately against him indicates that the Investigating Officers had thought that the appellants had no privy with him. Two other persons were also suspected of having committed the murder alongwith Allah Ditta. One Ghulam Abbas was interrogated during investigation by one of the Investigating Officers, while the other stated that if the Investigation had remained with him, he would have arrested him also in this case.
19. For all these reasons, we find it difficult to place implicit reliance on the statements of Muhammad Hassan and Rehmat A.I, the only eye-witnesses examined in this case. It is worth noticing that the other two eye-witnesses mentioned in the F.I.R. Were closely related to the deceased but were given up ashaving been won over. The prosecution has not been able to prove the case against the appellants beyond reasonable shadow of doubt. This appeal is, therefore, accepted and they arc acquitted by way of grant of benefit of doubt. Death sentence not confirmed.