' ABDUL, WAHEED, J.-- Shabbir Ahmad (22), Muhammad Akram (33), Yasin (60), Muhammad Bashir (27), Sadar Din (80), Nazir (23/24), Rashid Khan (55) and Ghulam Mustafa (30) were tried under sections 148 and 302 and 307 read with section 149, P.P.C. For forming an unlawful assembly armed with firearms and in prosecution of the common object thereof committing the murder of Mst. Ulfat Bibi (70) and murderous assault on Shamshad Ahmad (32), Muhammad Siddiq (65) and Mst.
Zubaida (50) by the Additional Sessions Judge, Faisalabad who vide his judgment dated 10th of May, 1986 acquitted all the accused except Shabbir Ahmad by giving them benefit of doubt but convicted Shabbir Ahmad under section 302, P.P.C. And sentenced him to death and to pay a fine of Rs.5,000 or in default to undergo R.I. For a period of two years and under section 307, P.P.C. For murderous assault on Shamshad Ahmad and Siddiq to R.I. For seven years on each count and to pay a fine of Rs.5,000 on each count or in default to suffer R.I. For a further period of two years on each count. It was directed that half of the fine, if realized, under section 302, P.P.C. Be paid to the heirs of the deceased and half of the fine on realization under section 307, P.P.C. To Shamshad Ahmad and Siddiq in equal shares. Shabbir Ahmad was granted benefit of the provisions of section 382-B, Cr.P.C. Shabbir Ahmad has filed an appeal against his convictions and sentences. The trial Court also has submitted a reference for confirmation of the sentence of death. The complainant has filed a revision petition against the acquittal of Muhammad Akram, Yasin, Muhammad Bashir, Sadar Din and Nazir. This judgment shall dispose of the appeal, the reference and the revision petition.
2. The occurrence took place on 6th of November, 1982 at 7-00 a.m. In the Abadi of Chak No. 67/J.B.
About four miles away from Police Station Thikriwala, District Faisalabad. The complaint Exh.P.G./1 in respect of the occurrence was recorded at the spot at 8-30 a.m. On the same date on the statement of Shamshad Ahmad P.W.5 by Inspector Javed Ali, S.H.O. Police Station Thikriwala who while enroute to Faisalabad to appear in a Summary Military Court received an information of the occurrence at Sudhar Bus Stand and reached the spot. On the basis of this statement, a case under sections 148 and 307/149, P.P.C. Was registered at Police Station Thikriwala on the same date at 8-55 a.m. Vide formal F.I.R. Exh.P.G. Recorded by M.H.C. Bashir Ahmad P.W.3 as at that time the deceased had not succumbed to the injuries. Subsequently on 2nd of December, 1982 on the expiry of the deceased in the hospital, an offence under section 302, P.P.C. Was added.
3. The prosecution case briefly was that on the day of occurrence at 7-00 a.m. Shamshad Ahmad P.W.5 was standing in the street in front of the Baithak of Muhammad Siddiq P.W.6, his uncle alongwith him and Mst. Ulfat Bibi deceased, his mother. Suddenly the appellant fired twice from his carbine standing by a bathroom of the house of one Abdul Ghafoor Jat. The pellets hit Shamshad Ahmad P.W.5 on the face and the deceased on the abdomen. Then Muhammad Akram while standing on the roof of his house twice fired from his gun. The pellets hit Shamshad Ahmad P.W.5 on the left arm and Muhammad Siddiq P.W.6 on the face. Afterward Yasin while standing on the roof of his house fired indiscriminately from his gun. Some pellets hit the deceased on the left arm.
Meanwhile Muhammad Bashir armed with a revolver, Sadar Din, empty handed and Nazir carrying a carbine came there and raised Lalkaras that no one from the family of Shamshad Ahmad should escape. Asghar Ali P.W.7 and Khan Bahadur (given up as unnecessary) came there and entreated Sadar Din to stop his men from firing but he refused saying that they would settle the matter there and th2n.
4. The motive for the attack allegedly was that on the night between the 24th and 25th of October, 1982, Anwar-ul-Haq son of Rashid Khan was apprehended by the local police while committing Zina. He was challaned. Rashid Khan and his son Ghulam Mustafa, the two acquitted co-accused suspected that information against Anwar-ul-Haq had been supplied to the police by Shamshad Ahmad P.W.S. In order to avenge the same, the appellant and the other acquitted co-accused at their behest had launched the present attack. A day before also the appellant allegedly had twice fired at Shamshad Ahmad P.W.5 but he escaped unhurt. A case under section 307, P.P.C. Was registered against the appellant for murderous assault on Shamshad Ahmad P.W.S.
5. Inspector Javed Ali P.W.8 investigated the cast. He prepared injury statement Exh.P.O. In respect of Shamshad Ahmad P.W.S. The other injured namely Muhammad Siddiq P.W.6 and Mst. Ulfat Bibi deceased had meanwhile been sent to the hospital at Faisalabad for treatment. The Inspector visited the spot and prepared its rough site plan Exh.P.P. He arrested the appellant and other accused except Yasin on 9th of November, 1982. On the same date, he recovered two .12 bore pistols P.4 and P.6 and two cartridges P.5/1-2 from the appellant vide memos Exh.P.J. And P.K., a revolver P.7 from Muhammad Bashir vide memo. Exh.P.L. And a .12 bore gun P.8 from Muhammad Akram vide memo. Exh.P.M. Yasin accused had obtained his bail before arrest. He was formally arrested on 16th of November, 1982. From him on the same date, a gun P.9 was recovered vide memo. Exh.P.N. All these memoranda were attested by Shamshad Ahmad P.W.5 and Niamat Khan, who was not produced. On 2nd of December, 1982, after the death of the deceased in the hospital, the Inspector reached there and prepared inquest report Exh.P.Q. And despatched her dead body to the mortuary for post-mortem examination. He got prepared from Aurangzeb, Draftsman P.W.9 site plan Exh.P.R. And P.R./1 of the place of occurrence. On the completion of the investigation, the Inspector challaned all the accused including the appellant showing the names of Rashid Khan and Ghulam Mustafa in column No.2 of the challan, as according to the Investigating Officer they were found innocent.
6. Dr. Capt. Mumtaz P.W.2, Medical Officer, District Heaquarters Hospital, Faisalabad medically examined the deceased on 6th of November, 1982 at 10 a.m. When she was alive and found the following injuries on her person:-
(a) A fire-arm wound 3/4 c.m. x 3/4 c.m. D.N.P. On front of right chest lower part (entrance wound).
Margins were black.
(2) A fire-arm wound 1 c.m. x 3/4 c.m. On back of right lumber region D.N.P. (exit wound).
(3) A fire-arm wound 3/4 c.m.m. x 3/4 c.m. On back of left forearm (entrance wound). Margins of the wound were blackened.
(4) A fire-arm wound 2 c.m. x 1-1/2 c.m. In front of left forearm (exit wound).
' In the opinion of the Medical Officer injuries Nos. 1 and 2 were dangerous to life. The injuries were by fire-arm and their duration was about three hours. Exh.P.B. Is the medico-legal report.
7. The above Medical Officer on the same date at 10-15 a.m. Medically examined Muhammad Siddiq P.W.6 and found the following injuries on his person:-
(1) Five fire-arm wounds 1/3 x 1/3 c.m. Each front of forehead.
(2) Three fire-arm wounds 1/2 x 1/2 c.m. Right cheek x D.N.P.
(3) A fire-arm wound 1/3 x 1/3 c.m. On left upper cheek. Eyelids of the left eye were swollen blue.
(4) Twelve fire-arm wounds 1/3 x 1/3 c.m. x bone deep on left side of neck.
(5) A fire-arm wound 1/3 x 1/3 c.m. Tearing left ear pinna.
(6) Seven fire-arms wounds 1/3 x 1/3 c.m. Left front of left upper chest x D.N.P.
(7) Five fire-arm wounds 1/3 x 1/3 c.m. x D.N.P. On left shoulder.
(8) Two fire-arm wounds 1/3 x 1/3 c.m. Left lower arm.
(9) Two fire-arm wounds 1/3 x 1/3 c.m. Left front lower chest.
' Injury No.3 was declared as grievous and the remaining as simple. These injuries were caused by fire-arm and their duration was within three hours. Exh.P.C. Is the medico-legal report.
8. The above Medical Officer on the same date at 11-45 a.m. Medically examined Shamshad Ahmad P.W.5 and found the following injuries on his person:-
(1) A fire-arm wound 1/3 x 1/3 c.m. At angle of left eye with swelling 3 x 3 c.m. On left temple.
(2) A fire-arm wound 1/3 x 1/3 c.m. On right side upper lip near right side of nose with abrasion 1/2 c.m. x 1/3 c.m. On right alae of nose.
(3) A fire-arm wound 1/3 x 1/3 c.m. D.N.P. On front of left shoulder. Corresponding cuts were present on shirt and Bunyan.
(4) A fire-arm wound 3/4 x 3/4 c.m. On the back of lower upper arm 3 c.m. From elbow above.
(5) A fire-arm wound 3/4 x 3/4 c.m. On left upper fore-arm on upper part.
' These injuries were ultimately declared as simple. These injuries had been caused by fire-arm and their duration was about six hours. Exh.P.D. Is the medico-legal report.
9. In the occurrence Mst. Zubaida wife of Mehdi also appears to have sustained a fire-arm injury.
She was cited as a prosecution witness but not produced at the trial. She was medically examined by the above Medical Officer on the same date at 10-30 a.m. He found a fire-arm wound 1/3 x 1/3 c.m. Muscle deep on her left lobule of left ear pinna. This injury was kept under observation. Its duration was three hours. Exh.P.E. Is the medico-legal report.
10. The above Medical Officer on 3rd of December, 1982 at 9-00 a.m. Performed post-mortem examination on the dead body of Mst. Ulfat Bibi who had died on 2nd of December, 1982 in the hospital and observed the following injuries:-
(1) A scabbed fire-arm wound 3/4 x 3/4 c.m. On front of right chest lower part.
(2) A scabbed fire-arm wound 1 c.m. x 3/4 c.m. On the back of right lumber region.
(3) A scabbed fire-arm wound 3/4 c.m. x 3/4 c.m. On the back of left forearm.
(4) A scabbed fire-arm wound 2 c.m. x 1-1/2 c.m. On left forearm with fracture of left radius lower third part.
(5) Right paramedian laprotomy incision 17 x 3/4 c.m. Scabbed on front of abdomen.
(6) An incised wound operated incision oblique 8 c.m. x 3/4 c.m. On left flank of abdomen oblique in direction.
' In the opinion of the Medical Officer, the death was due to shock and haemorrhage and septicaemia as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. The injuries were by fire-arm. The probable interval between the injuries and the death was about 26 days and between the death and the post-mortem examination about 14 hours. Exh.P.F. Is the post-mortem examination report and Exh.P.F./1 is the diagram showing the locale of the injuries.
11. The prosecution in support of its case examined-nine witnesses including three eye-witnesses namely Shamshad Ahmad P.W.5, Muhammad Siddiq P.W.6 and Asghar Ali P.W.7. The appellant and the co-accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution case and the recoveries attributed to them except Yasin according to whom gun P.9 was his licensed gun and was recovered from his house. They pleaded that they were innocent and had been falsely implicated due to enmity. According to the appellant, it was the complainant party who were the aggressors. No one except Ghulam Mustafa adduced any evidence in defence.
Ghulam Mustafa produced Ch. Khurshid Ahmad, Advocate as D.W.1. He deposed that he was engaged by Shamshad Ahmad P.W.5 as his counsel in this case. On 28th of November, 1982, he and Shamshad Ahmad appeared in the Court of Ch. Muhammad Akram, Magistrate 1st Class and made a statement Ddi.DA. That Ghulam Mustafa and his father had been implicated in the case on account of misunderstanding and they did not want to proceed against them.
12. After appraisal of the evidence, the learned trial Court has acquitted the co-accused of the appellant by extending them the benefit of doubt on the grounds that the firing attributed to Muhammad Akram and Yasin could not hit the deceased and the witnesses on account of the obstruction caused by the intervening houses, Muhammad Bashir, Sadar Din and Nazir were attributed Lalkarag and there was sufficient reason to believe their non-participation and false implication and Rashid Khan and Ghulam Mustafa were declared as innocent by the police not only on the basis of investigation but also according to the statement made by Shamshad Ahmad P.W. Before the police on 11th of November, 1982. It, however, convicted and sentence the appellant as above vide its impugned judgment.
13. Learned counsel for the appellant has assailed the impugned judgment on the grounds that the motive as alleged by the prosecution is not proved; that the prosecution changed the venue of the occurrence; that the ocular account furnished by the P.Ws. Is unreliable and in conflict with the medical evidence; that according to the evidence on record, a large number of persons saw the occurrence and their statements were recorded by the police and they were interrogated but none of them has been cited as a prosecution witness and that the ocular evidence having been disbelieved against seven accused, could not be made a basis for conviction of the appellant without corroboration. Learned counsel for the State has supported the judgment. Learned counsel for the complainant has, however, conceded that in view of the nature of the injuries caused to the deceased, the part attributed to the appellant is culpable under section 326, P.P.C.
14. As regards the motive, it was two-fold firstly that Rashid Khan and Ghulam Mustafa, acquitted accused, suspected that Anwar-ul-Haq, son of Rashid Khan and brother of Ghulam Mustafa, was apprehended by the police in a Zina case on an information provided by the appellant and it was they who instigated the appellant and the remaining acquitted co-accused mounted the attack to avenge the arrest of Anwar-ul- Haq and secondly that on 5th of November, 1982, the appellant had fired at Shamshad Ahmad P.W.
But he escaped unhurt and a case under section 307, P.P.C. Was registered against the appellant at Police Station Thikriwala. The learned trial Court disbelieved the first part of the motive only. Only Shamshad Ahmad P.W.5 deposed to the motive. He, however, admitted in his cross-examination that on 11th of November, 1982 he made a statement before the police that Rashid Khan and Ghulam Mustafa accused were innocent. He further admitted that on 28th of November, 1982, he alongwith his counsel namely Ch. Khurshid Ahmad, Advocate had appeared before the Magistrate.
Ch. Khurshid Ahmad, Advocate also deposed as D.W.1 that he was engaged by Shamshad Ahmad P.W. As his counsel in this case and on 28-11-1982 Shamshad Ahmad appeared alongwith him in the Court of Ch. Muhammad Akram, Magistrate 1st Class and made a statement Exh.D.A. This statement was signed by him as well as Shamshad Ahmad P.W. According to this statement, Shamshad Ahmad P.W. Admitted that Ghulam Mustafa had been implicated on account of misunderstanding and he did not want to take further proceedings against Ghulam Mustafa and his father. In view of this fact, the first part of the motive disappears.
15. So far as the second part of the motive is concerned, it too appears to be as a sequel of the suspicion entertained against the appellant for the apprehension of Anwar-ul-Haq in a Zina case.
The concession of Shamshad Ahmad P.W. During investigation and before the Magistrate that implication of Ghulam Mustafa and his father was on account of misunderstanding, reflects on the veracity of this motive also. There was no other motive for the appellant to attack Shamshad Ahmad. Therefore, if a day before the occurrence the appellant had made Shamshad Ahmad P.W.5 the target of ineffective firing, it was Shamshad Ahmad P.W.5, who should have felt aggrieved and not the appellant for the repetition of the attack. We, therefore, feel inclined to subscribe to the contention of the learned counsel for the appellant that the prosecution has failed to prove any motive for the attack ascribed to the appellant and his co-accused.
16. The eye-witness account was furnished, as mentioned above, by Shamshad Ahmad P.W.5, Muhammad Siddiq P.W.6 and Asghar Ali P.W.7. Shamshad Ahmad is not a truthful witness. He while admitting that on 28th of November, 1982 alongwith his counsel Ch. Khurshid Ahmad, Advocate had appeared before the Magistrate denied having made a statement that Ghulam Mustafa accused had been involved under a misunderstanding and that he did not want to proceed and desire any proceedings against Ghulam Mustafa accused and his father. He, however, added that he had put his signatures on the statement on that date. He clarified that the Magistrate had taken his signatures on a blank paper and recorded his statement later on. He was completely belied by his counsel Ch. Khurshid Ahmad, Advocate who stated as D.W.1 that Shamshad Ahmad had made a statement contained in Exh.D.A. Which was also attested by him. This prevarication on the part of Shamshad Ahmad loudly betrays that he has the propensity to tell lies. Siddiq P.W.6 diluted his testimony considerably when he said in his cross-examination that he alongwith the deceased and Shamshad Ahmad P.W. Was standing outside in front of his Baithak, all of a sudden firing started, a large number of shots were fired together, it was as a result of the said shots fired together that he, the deceased and Shamshad Ahmad were injured, he received a pellet on his left forehead and also on his chest and fell down unconscious and nine days afterwards when he regained consciousness in the hospital, Shamshad Ahmad P.W. On his inquiry told him the details of the F.I.R. In the terms he deposed to in the Court. It shows that he could not observe the entire occurrence and it was subsequently that its details were disclosed to him by Shamshad Ahmad.
The statement of Asghar Ali P.W.7 too does not inspire confidence. According to him, at the time of occurrence, he was present in the house of one Ghafar when he heard the gun report. He rushed outside and saw the appellant firing twice from a carbine hitting the deceased and Shamshad Ahmad P.W. He admitted in his cross-examination that the place from where the appellant had fired was not visible to him and he stated that Shabbir had fired from the side of the wall of the bathroom because while going to his place he had seen the appellant standing there and none else. It shows that his statement is of speculative nature. Therefore, it does not carry the requisite probative force. Besides, from his cross-examination he does not appear to be an impartial witness. He admitted that some of the accused of this case were prosecution witnesses against him in a case under section 307, P.P.C. And that the accused supported Abaid Ullah, his adversary, in the local bodies election held before the present occurrence.
17. According to the testimony of the above three eye-witnesses, the deceased was fired at when she was standing alongwith Shamshad Ahmad and Muhammad Siddiq in the street in front of the house of Muhammad Siddiq. The same place was indicated in the rough site plan Ex.h.P.P. Prepared by Inspector Javed Ali P.W.8 on 6th of November, 1982, on the day of occurrence, after visiting the spot. At the time of preparation of site plan Exh.P.R. By Aurangzeb, draftsman P.W.9, an attempt was made to shift the spot from in front of the Baithak of Muhammad Siddiq as mentioned in the F.I.R.
And deposed to by the eye-witnesses, to a place near the chowk in order to bring it closer to the place from where the appellant had allegedly fired. According to the draftsman, the distance between the bathroom from where the appellant had allegedly fired and the place where the deceased was standing at the time of occurrence was 106 feet. If the appellant had fired from such a long distance, the margins of the injuries received by the deceased thereby would not have been blackened. Learned counsel for the complainant has argued that this blackening is not of the type which is caused by a fire from a close range. He has sought support from some observations made in the Principles and Practice of Medical Jurisprudence by Tayler. This argument may have sounded attractive but for the presence of exit wounds on the body of the deceased which also vouchsafe that she was fired at from a close range. The pellets hitting the deceased by a fire from a distance of 106 feet would not have been so imp actual as to penetrate her body. She had received four injuries; two entrance wounds and two corresponding exit wounds. H Muhammad Akram and Yasin had fired by standing on the roofs of Sadar Din accused and Ramzan respectively. The house of Sadar Din was at a distance of 84 feet from the spot by a crow's flight and because of the existence of an intervening house, there was obstruction between these two places. It means that the story that the fire by Akram from the roof of the house of Sadar Din had hit Shamshad Ahmad and Muhammad Siddiq is implausible. Similar is the position in the case of the firing by Yasin, acquitted co-accused. It was for these reasons and most justifiably that the learned trial Court did not believe the participation of Muhammad Akram and Yasin accused.
18. The recoveries of fire-arms effected in this case are of no avail to the prosecution, firstly because Shamdshad Ahmad P.W.5 who testified to them is not only not an independent witness but also prone to tell lies and secondly because Inspector Javed Ali P.W.8, as frankly conceded by learned counsel for the complainant in his arguments, conducted the investigation negligently. The negligence of the Investigating Officer is manifest from two facts, firstly that he recorded the statement of Muhammad Siddiq on 17th of November, 1982 i.e. 11 days after the occurrence but from the tenor of the statement, it appears that it had been recorded on the day of occurrence when Muhammad Siddiq was lying unconscious as a result of the injuries sustained by him and secondly that he did not record the Zaminis of this case himself but got them recorded from A.S.I.
Muhammad Akram.
19. Moreover, according to Shamshad Ahmad P.W.5 in his cross-examination, a large number of persons saw the occurrence but none of them was prepared to depose against the accused. The Investigating Officer also admitted in his cross-examination that he had made inquiry about the occurrence from the people of the locality but he did not cite any one of them as a witness in the calendar. The absence of any independent witness in the circumstances renders the prosecution case brittle with infirmity.
20. The ocular evidence was disbelieved qua the participation of the seven co-accused of the appellant. Prudence demanded restraint from jumping to a finding of guilty against the appellant on the same evidence without looking for unimpeachable corroboration which independently provided without any reasonable doubt sufficient incriminating basis for his conviction. Such a corroboration is lacking in this case.
21. In view of the foregoing reasons, we hold that the prosecution case against the appellant is equally dubious as against the acquitted co-accused. Therefore, we accept the appeal of the appellant and giving him the benefit of doubt acquit him. He shall be released forthwith if not required in any other criminal case.
22. The sentence of death is not confirmed.
23. The revision petition filed by the complainant is, however, dismissed in limine.