1. MUHAMMAD MUNIR FAROOQI, J.-Chahat khan was tried along with his two sons Jumma Khan and Inayat Khan and his nephew Balanda Khan by the Additional Sessions Judge, Lahore camp at Kasur, on charges under sections 302/34 slid 3117/34, P. P. C., who acquitted his co-accused cart both the charges and convicting the appellant under section 302, P, P. C'. Only, sentenced him to death on 3010-1968. The condemned prisoner has filed an appeal questioning the correctness of his conviction and the cast is also before us under section 374, Cr. P. C. For confirmation of the death sentence. We propose to dispose of the appeal as well a4 the reference by this judgment.
2. The incident involving the murder of Sardar Khan Lambardar and injuries to one Bashir, a child of about 6 years of age, took place at about 5 p .m. On the 1st of September 1967, inside the Abadi of Chak No. 17 of Tehsil and Police Station Pattoki, District Lahore.
3. The prosecution case, in brief, is that Chahat Khan (appellant) was defeated in the last B. D.
4. Election as Sardar Khan (deceased, had supported his rival Chandu Khan P. W. With over a hundred voters under his influence which had sowed the seeds of strife between them.
5. About three months prior to the occurrence the shop of Maluka P. W. a close relation of Sardar Khan (deceased) was burgled and he suspected Jumma Khan (accused), and his nephew Paltu Khan, the relatives of Chahat Khan (appellant) who were prosecuted and later acquitted by the Court: Paltu Khan was a tenant of Budhi Khan P. W., another relative of Sardar Khan (deceased) who had got attached the cattle of the aforesaid Paltu Khan in execution of a rent decree but with the help of Chahat Khan (appellant) a stay order had been obtained in the meanwhile by the afore--said Paltu Khan. On the eventful day two bailiffs had come to auction these cattle and they were staying in the Baithak of Sardar Khan (deceased) where Paltu Khan accompanied by Chahat Khan (appellant) apprised them of the stay order and the auction of the cattle was put off. The bailiff went back leaving Chahat Khan (appellant) and party smarting under this insult who are said to have waylaid Sardar Khan (deceased) on the same evening when he was returning from his Flour Mill with a tin of oil. It is alleged that as he passed by the Baithak of Chahat Khan (appellant) the latter scored at him about this attachment of animals and threatening him with dire consequences exhorted his sons Inayat Khan and Balanda Khan (accused) to kilt him who attacked him with Borchhi`s but Sardar Khan (deceased) ran away. On this Jumma Khan (accused) armed with a pistol and Chahat Khan (appellant) armed with a guns chased him and before he could enter his house both of them shot a fire each which hit the deceased in the right parietal region and fell him dead to the ground. One of the pellets injured Bashir (a minor child) playing in the lade at that time. Ashraf, Taj Din Maluka P. Ws, and one Dalley Khan were also present there who raised an alarm. Chahat Khan (appellant) retreating a bit shouted to his companions that they should kill all the remaining persons and remove the dead body. On this Taj Din P. W. a son of the deceased, is said to have brought out a gun from his house and fired a shot in self- defence which caused injuries too Chahat Khan (appellant) and two children Tufail Muhammad P.
6. W. And Munawar Bibi and scared away the assailants. .
7. After their escape Ashraf P. W. Pushed to Chhanga Manga and meeting Nazar Hussain A. S. I. Near the tonga stand reported Me matter to fries who recorded his statement Exh. P. A. At 6-30 p.m.
8. There and forwarding the same to the Police Station Pattoki though F. C. Raunaq A.I P. W. For the formal registration of the case reached the spot along with F.C. Mohammad Din at about 8-30 p.m.
9. On the same evening Exh. P. A. Was received by Ayub Khan S.I, at the bus Stand Pattoki at 7-30 p.m.
10. Who in his turn endorsed it to the Muharrir and sent it through the same F. C. To the police station where A. S. I. Muhammad Riaz drew out the formal F. I. R. Exh. P. A./I at 7-40 p.m. The came evening.
11. On reaching the spot S.I. Ayub Khan found A. S. 1. Nazar Hussain and F. C. Muhammad Din guarding the dead body and after preparing the necessary inquest report Exh. P. N. And the injury statement Exh. P. O., despatched it to the mortuary, In the course of the Investigation he examined the injuries of Bashir, Muhammad Bibi and Tufail (P. W.) vide Exh. P. Q. P. R. And P. S. Respectively and sent them for medical examina--petition to Pattoki. He also took into possession gun P. 5 along with six cartridges P. 7/1-6 from Taj Din P. W. And sealed them into a parcel vide Exh. P. D.
12. On inspection of the spot era the next morning i.e., 2nd of September 1967, he secured the blood- stained earth and sealed it into a parcel Vide Exh. P. F. He also recovered one pellet from the western corner of the southern wall of the Baithak of Sardar Khan (deceased), one pellet from the southern wall of the house of Paltu Khan and still another pellet from the western wall of the house of Kantola all situated is the same lane and healed them into separate phials vide Exh. P. G., P. H., and P. I. Respectively. Nazar Hussain A. S. I. Produced Chahat Khan (appellant, and his co-accused before S. I. Ayyub Khan who arrested them on the same day. Chahat Khan (appellant) brought his licensed gun P. S along with four live cartridges P. 9/1-4 and his licence P. 10 which was taken into possession vide memo. Exh. P. K. And the gun was made into a separated sealed parcel. Jumma Khan had produced his licensed revolver P. 11 along with six live cartridges P. 12/1-6 and his licence P. 13, which were taken into possession vide Exh. P. L. After the revolver P. 11 was made into a sealed parcel At the time of arrest of Chahat Khan (appellant) his clothes; turban P. 14, Chader P. IS, Kurta P. 16 were found stained with blood and were got removed from his person and sealed into one parcel vide memo. Exh. P.M. The S. I. Found injuries on the person of Chahat Khan (appellant) and drawing out the injury statement Exh. P. T. Sent him for medical examination.
13. Muhammad Din F. C. Brought back from the mortuary the clothes of Sardar Khan (deceased) shirt P. 1, Chader P. 2, turban P. 3 along with a phial containing pellet P. 4 which were taken into possession vide memo. Exh. P. C. The S.I. Got prepared the site plans Exhs. P. E. And P. E./1 from Syed A.I Akhtar Zaidi and putting his notes in red ink on the same, signed them in token of correctness.
14. He handed over further investigation to S. H. O. Ch. Khurshid Ahmad and returning to the police station deposited the sealed parcels with Muhammad Bashir Muharrir Constable on the 4th of September 1967. Saleh Muhammad F. C. Produced before him a sealed phial containing pellet vide memo. Exh. P. B., on the 3rd of September 1967.
15. Mr. Shah Jahan Khan, Fire-arms Expert, had examined shot-gun P. 5 --f Sardar Khan (deceased), the shot-gun P. 8 of Chahat Khan (appellant) sod revolver P. 11 of Jumma Khan (acquitted accused) who reported vide Exh. P. A. A. That although all these weapons were in perfect working condition but it could, not be determined as to when any of these was last fired. The pellets recovered from the deed bay of the aforesaid walls were never sent to this expert. So his evidence was of no consequence.
16. The autopsy on the dead body of Sardar Khan was held by Dr. Muhammad Akram Khan P. W. 1 on the 2nd of September 1967, at 1 p.m. We Exh. P. U. And he found the following injuries:- fine inlet gunshot wound -- ' diameter circular on lower part of right parietal region 1 above right ear through and through the skull brain, making four ounces circular hole on right lower parietal bone. A large pellet was found just behind left eye-ball, piercing left base of skull just behind left eye-ball. Left eye-ball was swollen alongwith eye--lids which were bluish in colour. The brain matter was protruding out through inlet wound. No outset wound was seen. There was a large laceration of the skull on front and upper part of parietal bone 4' long. The pellet was one of the large pellets and it was sealed in a bottle.
17. The skull was fractured. Blood vessels of the brain and skull were injured. All organs were healthy.
18. Stomach was containing three ounces digested food. Bladder was containing four ounces of urine.
19. Death, in the opinion of the doctor, was due to shock and haemorrhage on account of gunshot wound pirecing the brain matter and multiple fractures of flee skull. The injury was ante-mortem and sufficient to cause immediate death in this case in the ordinary course of nature. The probable time that elapsed between injury and death was immediate and between death and post-mortem 18 to 24 hours.
20. Bashir Ahmad, the minor son of Maluka P. W. Was examined by the Medical Officer, Incharge Civil Hospital, Chunian, on the 2nd of September 1967, who found the following injury on his person vide Exh. P. Y/1 on Exh. P. Y. The application of the police:- `A gunshot wound oblique -- ' x 1/3' x skin deep on back arid lower part of left chest 1 -- ' away from middle line on the back."
21. On medical examination of Munawar Bibi the following injury was found vide Exh. P. Z/i, on Exh. P. Z.
22. The application of the police:- "A gunshot mark 1/8" diameter circular superficial, with no depth on back and upper part of left chest 1 -- ' away from middle line on the back.
23. Injury simple, weapon shotgun, duration within 24 hrs:'
24. Tufail Muhammad son of Muhammad Bakhsh, was examined on the same day at 12-5 p.m. By Dr. Muhammad Akram Khan who observed the following injuries on his person:-
(1) A gunshot mark 1/8' diameter circular left lower lid without depth but swelling -- ' long along the lid.
(2) A gunshot mark 1/3' diameter circular on left upper chest 1' below left clavicle.
(3) A gunshot mark 1/3' diameter circular on left axilla without depth.
(4) A gunshot mark 1/3' diameter circular on left axilla -- ` below injury No. 3.
(5) A gunshot mark 1/3' diameter circular on left abdomen without depth 2' away from umbilicus.
(6) A gunshot mark 1/3' diameter on front right lower chest, without depth 2' away in front middle line.
(7) A gunshot mark 1/3' diameter circular on outer lower third of left calf without depth.
25. The injuries were simple, caused by gunshot within the duration of 48 hours. Exh. P. V. Is the carbon copy of the medico-legal report.
26. On the 3rd of September 1967, at 5-00 p .m. Chahat Khan (appellant) was examined by the same medical officer vide Exh. P. H. Who found the following injuries on his person:-
(1) A gunshot wound circular 1/8' diameter superficial on left louver mistring.
(2) A gunshot wound circular 1/8' diameter superficial on left cheek.
(3) A gunshot wound 1/8' diameter circular on inner lower third of left forearm 1-1/8' above wrist joint (superficial).
(4) A gunshot wound circular 1/8' diameter on left lower abdomen. If above pubic bone. A small pellet was found inside and it was sealed in a bottle and handed over to the police.
2. At the trial the appellant admitted all the above detailed preceding incidents; his defeat in the last B. D. Election as a result of the support given to his opponent by Sardar Khan (deceased), the implication of Jumma Khan and Paltu Khan in the case of theft in the shop of Maluka P. W. And the attachment of the animals of Paltu Khan and the suspension of the auction on production of a stay order, but he denied to have any grudge against Sardar Khan (deceased) on that score. About the actual occurrence pleading the right of self-defence he made the following statement:- 'I was all along enjoying Huqa at the Thara of Paltu. Sardar Khan deceased came from the side of his house. I did say to him as to what harm he had done to us by the execution proceeding and the bringing of the Bailiffs. Sardar Khan there and then said to the that he would tell him about that just then. He went to his house and came armed with his gun. He fired at me. I was injured. I hid myself behind the wall of Paltu Khan. He again fired at me after advancing but I was not hit. He was going to fire at me for the third time. Apprehending danger of my life I fired at Sardar Khan in self- defence with my gun Exh. P. 8 which was already with me. Sardar Khan was hit and he died. Bashir, Munawar Bibi and Tufail P. W., were injured with the firing of the deceased."
27. He had thereby owned the fatal shot fired on Sardar Khan (deceased) giving his own version of the occurrence.
3. We are left with the task of determining which of the two stories is correct. The appellant had led no evidence in support of his plea while the prosecution has relied for its case on the testimony of Ashraf Khan P, W.
11. Taj Din P. W. 1 and Maluka P. W. 14 who have duly supported the above narration of the occurrence. The evidence of Tufail Muhammad P. W. 13 was, however, not helpful to them of these witnesses Ashraf Khan and Taj Din P, Ws., are brother and son of the deceased respectively while Maluka P. W. Is his close relation and father of Bashir, the injured child, as also the brother of Budhi Khan P. W. In the background of the party-faction arising out of their role in the last B. D.
28. Election, the failure of Malukals case relating to the theft in his shop, and the suspension of the auction or the cattle got attached by his brother Budhi Khan P. W. As to result of the intervention of Chahat Khan (appellant), they were certainly inimical to the appellant and their evidence called for a close scrutiny. The earned trial Judge applying this rule of caution rightly came to the conclu-- sion that the participation of the three co-accused of the appellant was not proved to his satisfaction and acquitted there of the charge observing as under:- "The prosecution story that firstly Inayat and Balanda were exhorted to kill deceased and they chased him them Jumma and Chahat armed with revolver and gun chased the deceased does not appear to be probable. Why Chahat and Jumma followed Sardar Khan when they were being followed by Inayat and Balanda with deadly weapons. It appears that only Chahat Khan was present at the place of occurrence and he made a taunt to Sardar Khan who felt annoyed and displayed some anger. He went towards his house and Chahat Khan fired at him. In my view the outer three accused were not present when the occurrence took place. It could be that after the occurrence they reached the spot and as there is admitted enmity between the parties they were also involved. I do not feel at all safe to convict Jumma, Inayat and Balanda on the statements of Ashraf, Taj and Malooka who were interested witnesses and their statements do not find any corroboration from other evidence as discussed above."
29. He had thus disbelieved these witnesses on the main parts of this incident in respect of the number of the assailants, the weapons used and the manner of the murderous assault on the deceased.
30. But in spite of this colossal infirmity in their evidence the learned trial Judge proceeded to look for its corroboration in respect of the part ascribed to Chahat Khan (appellant) and relying on an inconclusive aspect of the medical evidence he held the appellant guilty of the murder of Sardar Khan (deceased). The reasoning adopted by him is apparently fallacious. He was of the view that this part of the statement of these witnesses that Chahat Khan (appellant) had chased the deceased and fired a shot at him when he was turning towards his house in the lane on the right side has been corroborated by the location and direc--petition of the injury. The main part of this incident involving the hot chase by Inayat and Balanda as well as Jumma Khan (acquitted accused) having been disbelieved as improbable how could one accept the provocation version as correct about the role of Chahat Khan (appellant) without substantial corroboration from any independent source. Anyhow this location of the injury was not at all inconsistent with the story put up by the appellant either, as while confronting each other the deceased right have turned his head to the right in the hurry and worry of the moment and received the pellet on the right lower parietal as detected by the doctor in the post---mortem examination.
31. There are some more salient features of the case which appear to have escaped the notice of learned trial Judge and lend grave doubts to the credibility of these rightly partisan and interested witnesses, most important of these being the (appellant), Tufail Muhammad P. W. And the other child rise. Munawar Bibi at the earliest opportunity as the two basic documents the F. I. R. Exh. P. A.
32. And the inquest report Exh. P. H., are both silent about it. They appear to have originally suppressed these injuries with a set purpose which is not far to seek. .
5. According to the Karrawal police noted under Exh. P. A. Ashraf Khan P. W. Met Nazar Hussain A. S. I.
33. At the tonga stand of Chhanga Mango during his "Gasht" who recorded his statement there. This tongs stand is admittedly 15/20 Karams away from this police post. Ashraf Khan P. W. Had stated the same at the trial. Before the committing Magistrate he had stated .That the A. S. I. Pulled the chair from the police post and sat down on the Pakka Road to record his statement. When confronted with this portion of his statement in Sessions Court he denied to have made any such statement before the committing Magistrate which indicated his endeavour to faring his evidence in accord with the police proceedings. This had also demonstrated that the A. S. I. Had deliberately avoided to record the statement of this in--formant in the regular Roznamcha of his police post.
34. There is a strange coincidence that when the report Exh. P. A. Was forwarded to Police Station Pattoki through F. C. Raunaq A.I for the formal registration of a case it had again touched at a bus "stand" where S. I. Ayub Khan, in his own turn, was also found in Gasht and forwarded the same with endorsement to the Muharrir Constable of his police station.
6. We have then the unusual conduct of A. S. I. Nazar Hussain in avoiding to take in hand the investigation after reaching the spot at 8-30 p.m., although all the eye-witnesses were present there. He kept sitting only as a silent spectator guarding the dead body till the arrival of the S. I.
35. Ayub Khan at 10-00 p.m. Who held the inquest on the dead body which is shown to have been completed by 10-30 p.m. All this would lead to the irresistible conclusion that on receipt of the information of this murder through Ashraf Khan P. W. The A. S. I. Sending a verbal message to S. 1.
36. Ayub Khan proceeded to the spot and. Held a preliminary inquiry till the S. I, joined in the deliberations and then after fabricating a false story drew out the F. I. R. Exh. P. A. On a plain sheet of paper there. These various stages in registration of the case were later contrived to cover the delay.
7. Ashraf Khan f. W. Has not only omitted to mention in the F. I. R. The injuries of the appellant and other children named above, but had the audacity to deny any knowledge about them even in his statement at the trial. The same is true of the other two witness Taj Din and Maluka P. Ws. Which apparently betrayed their guilty conscience, as they did not want to incur the risk of being considered as aggressors by owning the injuries of so many persons. As regards Ashraf Khan P. W.
37. It was after repeated questions is cross-examination and great prevarication that the latter admitted this fact and a reference to the relevant portion of his statement will demonstrate that he was a brazen faced liar. It is accordingly reproduced below:--- "I saw these whole of the occurrence from the platform (Thara) of my house. It is correct that my house is on the southern side and the house of Sardar Khan is on northern side of the bazar. In between my house and the house of Sardar Khan are the houses of Chahat Khan and Paltu. It is correct that during the occurrence Mst. Munawar Bibi and Tufail P. W: were injured. Tufail was injured in the Chowk near the corner of the house of Fazal Din. I did not see Munawar Bibs being injured. She met me afterwards. There are ten/twelve houses then stated Tufail was injured at a distance of 15 Karaas from the house of Paltu. My house is at the distance of 50/55 Karams from the Chowk where Tufail was injured. House of Munawar Bibi injured is opposite to my house. I do not know whether Chahat Khan accused was injured during the occurrence or not. Bashir Khan son of Malooka was injured near the house of Sardar Khan. The eye-witnesses did not tell me that they saw Bashir Khan, Munawar Bibi, Tufail and Chahat Khan accused receiving injuries. It is correct that Chahat Khan accused, Bashir Khan, Munawar Bibi and Tufail were injured by the gun-shot fired by Taj P. W. I did not state in my statement Exh. P. A. That Tufail and Munawar Bibi were injured. It is incorrect that I did not mention about the injuries of Tufail and Munawar because they were injured by Taj. At that time I did not know whether Tufail and Munawar Bibi were injured. When Rao Ayub Khan S. I. Came to the spot, Bashir Khan and Tufail injured appeared before him and the S.I. Visited the house of Munawar Bibi."
8. Under the stress of cross-examination he belied the entire case of the prosecution by admitting that Chahat Khan (appellant), Bashir Khan, Munawar Bibi and Tufail were injured by the gunshot fired by Taj Din P. W. Which was physically impossible in view of the topography of the place of occurrence. According to the site plan Bashir was injured in the northern end of the lane while Tufail Muhammad was hit in the southern end of the lane. Both of them could not be hit by one shot fired from point No. I which is in between the two points. This meant that more than one shot were fired by Taj Din P. W. In this context the statement of Tufail Muhammad P. W. Would assume greater importance as he was admittedly injured during the same incident of firing. Ho stated that be was coming back after having played in the fields and as he reached the Chowk of the village he heard an alarm being raised by Dale Khan and Malooka P. W. And saw Inayat and Balanda (acquitted accused) armed with barchhis, Jumma Khan (acquitted accused) armed with a pistol and old Havaldar (Chahat Khan appellant) armed with a gun and that a gunshot teas fired and pellets came from the side of the house of Sardar Khan (deceased) which hit him on his abdomen and on other parts of his body. Ire added that he did not see anybody else being bit by the fire shots.
38. According to his statement Chahat Khan had not been hit by this shot which had caused injuries to Tufail Muhammad P. W. According to the site plan Tufail Mohammad P. W. Was standing just behind Chahat Khan (appellant) when he eras hit by this shot. The prose--cution case is that Chahat Khan (appellant), Tufail Muhammad and Muna--war Bibi were bit by the same shot. If it was true Tufail Muhammad should have seen Chahat Khan (appellant), falling down on receipt of the pellets from the same volley of pellets which caused injuries to Tufail Muhammad standing behind him. The assertion of this witness that he did not see any one else being injured by the fire shot meant that Chahat Khan (appellant) was injured by some other shot. The statement of this witness coupled with the admission of Ashraf Khan P. W. 11 supported the above proposition that more than two shots had been fired Win the side of the house of Sardar Khan (deceased) and that is the stand which Chahat Khan (appellant) had taken in his statement under section 342, Cr. P. C.
9. There is yet another missing link in the prosecution case. It was alleged that Sardar Khan (deceased) was returning from his Flour Mill with a tin of oil in his hand when Chahat Khan (appellant) had intercepted him but no such tin of oil was recovered from the spot by the police during the investigation of the case although we find in the evidence of Ashraf Khan P. W. 11 that the tin had fallen down where Sardar Khan was injured and was shown to the A. S. I. This tin could not have disappeared from the spot as Taj Din P. W., son of the deceased had been guarding the spot along with other relatives till the arrival of the police. The absence of this tin went a long way to belie-the prosecution story that Sardar Khan (deceased) was returning from the Flour Mill at that time.
39. The accumulative effect of all these lacunas is that the prosecution case had crumbled down bit by bit'. The preparation of the F. I. R after preliminary investigation had shat Bred the very foundation of the case an the suppression of the injuries of Chahat Khan (appellant) and other in the earlier stages, the doubtful implication of three other persons and the absence of any corroboration of the testimony of admittedly interested and inimical witnesses had demolished the entice edifice of the prosecution's case. Taking this view of the matter we need not further scrutinise the version put up by Chahat Khan (appellant) which had emerged more probable and giving him the benefit of these doubts we allow this appeal and setting aside his conviction and sentence acquit him of the charge levelled against him. He shall be set at liberty forthwith provided that he is not required in any other case. The reference is answered accordingly.