' IJAZ NISAR, J:--Younis Masih alias Yousu Masih (28) and his brother Arif Masih alias Atha Masih
(23) sons of Gaman Masih appellants along with Waris Masih alias Kala (22), Yousaf Masih (28), Rafique Masih (30) and Gaman Masih (65) were tried for the murder of Sahib Masih deceased (45).
Sharif Masih co-accused could not be tried as he was absconding. By judgment dated 8-8-1985 the learned Additional Sessions Judge, Sialkot convicted Younis Masih and Arif Masih under section 302/34, P.P.C. And sentenced them to death plus a fine of Rs,5,000 each or in default to undergo one year R.I. Waris Masih, Yousaf Masih, Rafiq Masih and Gaman Masih were given the benefit of doubt and acquitted.
2. Younis Masih and Arif Masih have filed an appeal against their conviction and sentence while the learned trial Court has made a reference under section 374 Cr.P.C. For confirmation of their death sentences. Both the matters shall be disposed of by this judgment.
3. The occurrence in question had taken place on 13-5-1984 at Deegarwela in the fields falling in the area of Changowali, 4 miles from Police Station Narowal. The report Exh.PA was lodged by Sardar Masih P.W.1 at 8-30 p.m. Recorded by Abdul Ghafoor A.S.I. P.W.10.
3-A. The facts as narrated in the F.I.R. Exh.PA. Are that on the day and time of occurrence Sardar Masih P.W.1, Yousif Masih P.W.4 and Rafiq Masih P.W.5 were sitting in their house when they heard gun reports from the northern side of their house. They rushed to that side and saw Younis Masih and Arif Masih firing carbine shots at Sahib Masih deceased. The latter ran towards north. Kala Masih, Rafique Masih, Gaman Masih and Sharif Masih who were armed with carbines and were sitting in a ditch stood up and challenged Sahib Masih deceased. Meanwhile Younis Masih and Arif Masih also reached that place. Both of them again fired at the deceased as a result of which he fell down and died instantaneously. The accused left towards the west.
' The motive for the occurrence was that Sardar Masih P.W.1 and Sahib Masih deceased used to cultivate the land of ulda Ali. On a dispute over the said land the deceased and the accused were jointly challaned in a murder case and were convicted by the trial Court but were acquitted in appeal. The accused party wanted to forcibly occupy the said land as according to them they had gone to jail for it. After the occurrence Sardar Masih left for Police Station Narowal and lodged F.I.R.
Exh.PA.
' A.S.I. Abdul Ghafoor P.W.10 reached the spot, picked up empty cartridges Exh.P.1/1-2 through memo. Exh.P.C., prepared the inquest report Exh.P.H. Of the deceased. On 23-54984 he arrested the appellants and other accused except Rafiq Masih and Sharif Masih. Rally Masih was arrested on 1- 61984 by Rai Muhammad Ameer, Inspector P.W.9 On 6-6-1984 Younis appellant led to the recovery of carbine P.2 with 5 live cartridges P.8/1-5 through memo. Exh.P.D. Attested by Sardar Masih P.W.1, Rafiq Masih P.W.5 and Rai Muhammad Ameer Inspector P.W.9. Nothing incriminating was recovered from other accused persons.
' The crime empties and carbine P.2 were sent to the Forensic Science Laboratory and according to the report Exh.PK (page 13 of the printed paper book) one of the crime empties had been fired from the pistol (Carbine).
4. Dr. Nazeer Ahmad P.W.8 conducted the post-mortem examination on the dead body of Sahib Din alias Stihiba de eased on 14-5-1984 at 9 a.m. And found the following injuries thereon:-
(1) Three fire-arm wounds 1 x 1 c.m. Each with inverted edges along with blackening of the edges of wound on the back of neck lower part left side with exit wound on right side of neck below the right lower jaw and ear with fracture of fifth and sixth spineous process of vertebra.
(2) A fire-arm wound 1 x 3 c.m. x 1/2 c.m. Grazing in nature on the back of neck just above injury No,1.
(3) fire-arm injury wound 1 x 1 c.m. On left side back of neck upper most part on the skull with exit wound on right side of neck.
(4) A fire-arm wound on back of chest left side 5 c.m. Below the left shoulder blade in an area 4 x 5-1/2 c.m. With inverted edges and tattooing and scorching edges of wound left to mid-line at the level of ninth and tenth thorax vertebra direction was from back to forward and to right. There was fracture of tenth vertebra and plastic wad and forty small pellets were extracted from the hone vertebra.
(5) A fire-arm wound 1 x 1 c.m. On the back of left shoulder with inverted edges and blackening direction was from left to right and slightly forward. The missiles after entering the body perforated the left lung upper lobe and blood vessels in the neck and was extracted from the right side of lung upper lobe.
(6) A fire-arm wound 1 x 1 c.m. With inverted edges and blackening on the inner border of left shoulder blade. The messeles after entering the body has perforated the chest wall lung and blood vessels in the chest cavity and was extracted from the mediastinum.
(7) A fire-arm wound 1 x 1 c.m. On left side back of chest at outer border of left shoulder blade. The large pellet after entering the body fractured the rib and perforated the lung and blood vessels in chest and was lodged at vertebral column in the mediastinum from where it was extracted. Death occurred due to shock and haemorrhage resulting from injuries Nos. 4, 5, 6 and 7. All the injuries were ante-mortem and caused by fire-arm. Time between injuries and death was instantaneous and that between death and post-mortem examination about 14 hours.
5. The appellants denied the prosecution allegations and pleaded innocence. Younis denied his presence at the spot as well as in the village. He stated that after the death of Sahib Masih, Sardar Masih complainant wanted to exclusively swallow the land owned by Gulda Ali and that the latter had promised to sell his land in favour of his father and Sahib deceased. Arif Masih appellant also made a similar statement. The other accused also took up the same plea. Two witnesses were examined in defence by the appellants. Riaz Ahmad Head Constable D.W.1 stated that Sahib Masih deceased was accused in a case under Article 11 of the Offence of Zina (Enforcement of fludood)
Ordinance, 1979 pertaining to the abduction of a Muslim girl. In cross-examination he stated that the trial had resulted in the acquittal of the accused. Muhammad Sharif Head Constable D.W.2 stated that there existed entries in the personal file of Sahib Masih deceased to the effect that his house was raided but he was not found there and that he was absconding to avoid his arrest.
' Gaman Masih accused (since acquitted) tendered in evidence Khasra Girdawari of Village Nagli and Fasihpur for the years 1980 to 1984 as well as the list of the non-Muslim voters of Village Fasihpur.
6. To prove its case the prosecution examined ten witnesses. Sardar Masih P.W.1, Yousaf Masih P.W.4 and Abdul Ghafoor, A.S.I. P.W.10 proved the recovery of empty cartridges from the spot. Sardar Masih P.W.1, Rafiq Masih PW.5 and Rai Muhammad Ameer Inspector P.W.9 proved the recovery of carbine P.2 from Younis appellant.
7. Without specifying any piece of evidence or circumstances relied upon by him the learned trial Judge convicted the appellants and acquitted Waris Masih, Yousaf Masih, Rafiq Masih and Gaman Masih.
8. Learned counsel for the appellants contends that all the eye-witnesses are closely related to one another with poor antecedents and the deceased was a bad character and had many enemies and might have been killed by some unknown persons and further that since the eye-witnesses had been disbelieved against majority of the accused their testimony could not be accepted against the appellants without independent corroboration. The matching of the carbine P.2 with the crime empties is highly doubtful because the parcels containing them were sent together to the laboratory. The ocular testimony is also said to be in conflict with the medical evidence.
9. Sardar Masih P.W.1 who is a complainant in the case is real brother of Sahib Masih. Yousaf P.W.4 is son of Sardar Masih while Rafiq Masih P.W.5 is brother-in-law of Sardar Masih. Sardar Masih P.W.1 admitted that his name is entered in Register No,10 of Police Station Narowal and that he had been convicted for smuggling. He further admitted that he and Sahib Masih deceased were history- shelters of Police Station Narowal and there were criminal cases against the deceased and that he was also arrested in connection with the theft of rifles from a Police Station of Sahiwal district.
According to him a case under section 307, P.P.C. Was registered against the deceased for breaking legs of one Bashir who was later on murdered and the deceased had been challaned in the said case and was sentenced to death. He also admitted that 40 to 50 ladies had also come out of their houses at the time of occurrence and had also seen the occurrence. Rafiq Masih P.W.5 admitted in the course of cross-examination that there were inhabited houses of Qaim Din, Badar Din and Akbar etc. On the northern side of the village and the village Abadis of village Fasihpur and Takla were at a distance of two furlongs from the place of occurrence but no independent male or female witness from that place was examined by the prosecution for the corroboration of Sardar Masih, Yousaf Masih and Rafiq Masih. The evidence of the eye-witnesses examined by the prosecution is in conflict with the medical evidence. Yousaf P.W.4 stated that the first two shots were fired by the appellants from a distance of two Kanals but he stands belied by the medical evidence as tattooing and scorching was found on the injuries of the deceased. The doctor who conducted the post-mortem examination stated that injury No,4 on the back of chest of the deceased appeared to have been caused from a distance of 4". He went on to say that injuries Nos.
5, 6 and 7 had also been fired from a very close range because of the presence of blackening around them. It cannot be said that Yousaf Masih might have said so through inadvertence because Rafiq Masih PW.5 had also stated that the appellants had fired from a distance of about 8 or 10 karms.
The matching of the crime empties with carbine P.2 is of no significance because both of them were sent to the Forensic Science Laboratory simultaneously. The crime empties were recovered from the spot on 13-5-1984 while carbine P.2 was recovered on 6-6-1984. It is not understandable as to why the crime empties were not sent to the Laboratory soon after their recovery. A 13 serious doubt is created in keeping the same with the police for such a long period and sending the same along with carbine P.2 on the same date as stated by Rashid Khan constable P.W.3. Rai Muhammad Amcer Inspector P.W.9 had kept the parcels of the crime empties with him till 6-6-1984 and delivered the same to Niaz Ahmad Head Constable P.W.7 along with the parcels of carbine.
There was thus a possibility that the crime empties might have been prepared from carbine P.2 after its recovery. No independent witness was examined to prove the recovery of carbine P.2 at the instance of Younis Masih appellant. Sardar Masilt and Rafiq Masih P.W.5 who testified to the recovery are also eye-witnesses in the I case and close relations of the deceased. They were not believed by the learned trial Court in respect of 4 acquitted accused. Since their evidence in respect of the main occurrence requires independent corroboration, they cannot corroborate ' themselves through the evidence of recovery of which they are the main witnesses.
' The motive is also vague. Gulda Ali who is owner of the land in dispute and could throw light on the dispute between the parties was not examined by the prosecution nor any Revenue Official was examined to state the true position.
10. For the foregoing reasons the prosecution has failed to bring home guilt to the appellants beyond all reasonable doubt and their conviction is not sustainable in law. In consequence we accept their appeal, set aside their conviction and sentence and acquit them of the charge. ' They shall be released, forthwith, if not required to be detained in any other case.
11. The death sentence of Younis Masih and Arif Masih is not corfirmed.
12. Before parting we cannot help remarking that Mr. Muhammad Bashir Malik, learned Additional Sessions Judge, Sialkot who had conducted trial of the case failed to properly discuss the evidence led in the case. The circumstances or pieces of the evidence relied upon by him against the appellants are not specified in the judgment nor did he examine the accused properly. Younis Masih was not asked to explain the matching of the crime empties recovered from the spot with the carbine P.2 alleged to be recovered at his instance. Likewise the second portion of the occurrence and the appellants firing further shots at the deceased near the ditch on the Lalkara of their acquitted accused was also not put to them. Section 342, Cr.P.C. Requires that the Court shall question an accused generally on the case to enable him to explain any circumstances appearing in the evidence against him while section 367 Cr.P.C. Lays down that the judgment shall contain the point or points for determination and decision thereon and the reasons for the decision but in the case in hand the learned trial Judge neither questioned Younis Masih appellant on all the circumstances appearing against him nor set forth the reasons for the conviction of the appellants. He shall be careful in future in this behalf. A copy of the judgment be sent to him for his information.