' Amjad Saeed alias Mum, his brother Iftikhar Ahmad alias Gola, Tariq, their cousin, Jalil, their paternal-uncle (father of Tariq), Shahbaz, Haroon Rashid and Muhammad Aslam alias Achhu Khalifa, their friends and party men, were tried by Additional Sessions Judge, Gujranwala, under section 302/307/148/149/109, P.P.C. For having hatched conspiracy for murdering Muhammad Amin and for having murdered Muhammad Amin, Muhammad Ashraf (driver of Muhammad Amin), Imtiaz Hussain and Muhammad Ilyas (both strangers to Muhammad Amin as well as inter se), and for having launched murderous assault on Khawar Niwaz Sethi (P.W.17) and Muhammad Ijaz (given up P.W.). The learned trial Judge vide judgment, dated 22-5-1988 convicted them under section 302/149, P.P.C. 307/149, P.P.C., 148, P.P.C. And 120-B, P.P.C. And awarded sentences as follows:-- ' Under section 302/149, P.P.C., all the seven appellants have been sentenced to imprisonment for life, on four counts, plus to pay a fine of Rs,20,000 each, on four counts, in default whereof to undergo R.I. For two years. They have also been directed to pay Rs,10,000 as compensation, on each count, to the heirs of the deceased, in default whereof to suffer R.I. For two years.
' Under section 307/149, all the seven appellants have been sentenced to five years' R.I., on two counts.
' Under section 120-B, P.P.C., they have been sentenced to imprisonment for life each. Under section 148, P.P.C., they have been sentenced to three years' R.I. Each.
' All the sentences have been ordered to run concurrently.
2. The convicts have filed appeal. The complainant has filed revision petition, wherein prayer for enhancement of the sentence from imprisonment for life to death to all the convicts has been made, for offence under section 302/149, P.P.C. On all the counts.
' Both the matters are being disposed of by the ensuing judgment.
3. The occurrence had taken place on 18-9-1984 at 8-30 p.m. At Nirala Hotel, on G.T. Road, Gujranwala, at a distance of three furlongs from Police Station Model Town, Gujranwala.
4. F.I.R. (Exh.P.O./1) was registered at the police station on the same day at 9-45 p.m. By Muhammad Azim, A.S.I. (P.W.7), on receipt of statement (Exh.P.O.) made by Muhammad Iqbal (P.W.11) to Ashiq Ali, A.S.I. (P.W.18), on the same day at 9-30 p.m. In D.H.Q. Hospital, Gujranwala.
' According to F.I.R., the complainant, who had five brothers including Muhammad Amin (deceased) was on inimical terms with appellants lftikhai Ahmad, Amjad Saced, Tariq Jalil and Jalil, on account of murders. In that, Akram, a brother of Amjad Saeed and Iftikhar was murdered and complainant was challaned along with Muhammad Amin deceased and other brothers. They were, however, acquitted. Thereafter, he was named as an accused along with Muhammad Amin deceased and others for the murder of Muhammad Aslam, a brother Amjad Saeed and lftikhar.
The said case was pending and the complainant and his brothers had returned from jail on being granted bail.
' On the day of occurrence, the complainant alongwith his deceased brother Muhammad Amin, Muhammad Din (given up P.W.) and Muhammad Altaf (P.W.12) had sat outside Nirala Hotel while returning from village Bharoki in Car No,5252-GAC, driven by Muhammad Ashraf driver (deceased in this case). It was 8-30 p.m. Imtiaz Hussain (deceased) and Khawar Niwaz (P.W.17) were already sitting in the hotel and were taking their meals. There was enough electric light. Suddenly, Amjad Saeed, armed with rifle, Iftikhar, armed with a carbine, Haroon Rashid, Jalil, Aslam and Shahbaz, armed with revolvers, and Tariq armed with a sten gun, appeared from Bazar Kabbarian. Jalil gave a Lalkara that they had come to clear the account of previous murders and that none of them will be spared. Amjad Saeed started firing from the rifle. Muhammad Ashraf, Muhammad Amin and Imtiaz Hussain (deceased) were injured grievously. Khawar Niwaz suffered minor injuries. The complainant, his uncle Muhammad Din and Muhammad Altaf (P.W.12) saved themselves by hiding themselves under the table and chairs. In the meantime, Car No,4800/GAC came from the side of Sialkot Chowk. The accused tried to snatch that by stopping and ran for a short distance by its side.
When the car did not stop, Amjad Saeed, Tariq, Haroon Rashid and Iftikhar fired shots from their weapons. The glasses of the car were broken. Muhammmad Ilyas and Muhammad Ijaz, who were sitting in the car, suffered injuries. Ilyas died shortwhile thereafter in the car. The accused after completion of their programme succeeded in running away. As Muhammad Amin was still breathing, he was removed to Civil Hospital. He, however, died on reaching there. The other deceased and the injured P.Ws. Were also transported to the Civil Hospital, Gujranwala.
5. Ashiq Ali, A.S.I., after dispatching the statement (Exh.P.O.) to the police station for registration of case, prepared injury statements and inquest reports regarding the four deceased, i,e, Ilyas, Amin, Ashraf and Imtiaz, and handed over their dead bodies to Muhammad Aslam and Allah Ditta, Constables, for taking them to the mortuary for post-mortem examination. Thereafter, he visited the spot and collected blood-stained earth from the places, where Imtiaz, Ashraf and Amin were murdered and also collected eleven empties lying there and took the same into possession vide memo. Exh.P.E. Car No,4800/GAC was also taken into possession by him along with the articles lying inside the car including blood-stained Namda (P.7). He also collected five more empties lying at the spot and took the same into possession, after sealing them into a parcel.
' He moved the Court for issuance of warrants of arrest of all the accused and after obtaining the same entrusted those for execution to Muhammad Aslam, Constable (P.W.15). On Muhammad Aslam, Constable having failed to effect the arrest, he moved the Court for issuance of proclamations. On same being issued, he deputed Muhamamd Aslam, Constable for pasting them at the relevant places. He recorded supplementary statement (Exh.D.C.) of Muhammad Iqbal .Complainant on the first day and also recorded the statements of some of the witnesses.
' The investigation apart from him was also conducted by Abdul Majid Warraich, Inspector (P.W.19) and Tahir Mahmood, Inspector (not produced at the trial).
' Haroon Rashid, Amjad Saeed and Muhammad Shahbaz were arrested by Tahir Mahmood, Inspector on 8-10-1984. Aslam and Jalil were arrested by Abdul Majid Warraich, Inspector (P.W.19) on 18-11-1984. Tariq was arrested by him on 21-1-1985. Iftikhar was arrested by Amjad Karim, Inspector (P.W.16) on 17-1-1987 while being lodged in jail in another case under section 307, P.P.C.
Dated 7-1-1987. Ataullah Cheema, Si. (P.W.10) had arrested him in that case.
' Aslam appellant had led to the recovery of revolver (P.18) alongwith five cartridges on 2-12-1984.
Jalil had led to the recovery of revolver (P.1) and two cartridges on the same day. Tariq got recovered sten-gun (P.3) alongwith four bullets on 5-7-1985. Iftikhar had led to the recovery of carbine (P.5) on 7-1-1987 alongwith an empty. They were taken into possession vide different memos. Nothing was recovered from the remaining appellants.
6. Statements of 19 P.Ws. Were recorded at the trial. Report of Chemical Examiner (Exh.P.WW) and of Serologist (Exh.P.XX) were also tendered in evidence.
7. All the appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. They took up the stand that they had been involved falsely in this case due to enmity with the P.Ws. Arising out of murders.
' Amjad Saeed, Haroon Rashid and Muhammad Shahbaz pleaded alibi also. In that, they took up the stand that they had together left Lahore on 16-91984 at 9-15 p.m. By P.I.A. To Karachi and had travelled from Karachi by Air France during night of 17/18-9-1984 to Bangkok and had stayed there till 25-91984. They produced in defence their Passports, P.I.A. Tickets, travellers' cheques and some other documents. They also examined in defence Muhammad Areen Khan, Traffic Officer, P.I.A. As D.W.1. Qamar Ahmad Bhatti, Examiner of questioned documents from the office of S.P. Tech.
Services, Crimes Branch, Lahore, was examined as D.W.2. Najabat Ali, A.S.I. And Muhammad Rashid, MMPI were examined as D.Ws.3 and 4. Hashmat Ali, Constable was examined as C.W.1 to prove that service of summons could not be effected on Saud Gohar, Deputy Director, F.IA., Karachi Airport, on account of his having gone out of Pakistan to join his posting at Dubai.
8. Dr. Muhammad Asghar, who had medically examined Khawar Niwaz Sethi (P.W.18) on 18-9-1984 at 10 p.m. Appeared as P.W.1. He had noted a firearm injury with inverted margins on the back of left chest, lower part.
' The same doctor had examined Ijaz Ahmad (given up P.W.) on the same Jay at 8-55 p.m. And had noted two lacerated entry wounds with inverted margins , on the back of right chest, on the outer side of lower part and middle part. He had also noted two multiple lacerated wounds on the inner part of left chest and upper part of right arm. One exit wound on the front of right chest was also noted by him. The wound was described as lacerated.
' The injuries on both the P.Ws. Were opined to have been caused by firearm. Duration was opined to be fresh.
' He had also medically examined Muhammad Amin (deceased) whilst alive on the same day at 9 p.m. And had noted a lacerated wound with inverted margins on the left face below left lower eyelid with blackening around. An exit wound corresponding to the above injury was also noted by him on the right side of the neck. The injuries were opined to have resulted from fire-arm. Duration was opined to be fresh.
9. Dr. Manzur Hussain, who had conducted post-mortems on the dead bodies of Muhammad Amin, Imtiaz Hussain, Muhammad Ashraf and Muhammad Ilyas, on 19-9-1984, at different hours, appeared as P.W.2.
' On the body of Muhammad Amin, he had noted a lacerated wound of entry on the left cheek, below left eye, with tatooing around and a corresponding exit wound. Death was opined by him to have occurred due to injury on the left cheek and left eye, which were considered sufficient in the ordinary course of nature to cause death. The injuries were opined to have resulted from fire-arm.
Probable time between injuries and death was opined. To be half an hour while probable time between death and post-mortem was opined to be 12 to 18 hours.
' During autopsy of Imtiaz Hussain, he had noted a lacerated wound with inverted margins on the outer part of left chest, below the left nipple. Corresponding exit wound of the above injury on the back of lower part on right chest was also noted by him. He had also found a lacerated wound on the outer side of left wrist. All the injuries were opined by him to have resulted from firearm. Death was opined to have resulted due to shock and hemorrhage, resulting from the entry and exit wounds on the chest and back side. Probable time between injuries and death was opined to be immediate, while probable time between death and post-mortem was opined to be within 12 to 24 hours.
' The same doctor during post-mortem on the dead body of Muhammad Ashraf had noted a punctured wound, with black inverted margins on the lower parts of the back and right chest. He had also noted a corresponding exit wound, with averted margins on the top of epigastrium. After external examination he opined that death had occurred due to shock and haemorrhage, resulting from the above-noted injuries. The injuries were opined to have been caused by firearm. Probable time between injuries and death was opined to be immediate, while time between death and post- mortem was opined to be within 12 to 24 hours.
' During post-mortem of the body of Muhammad Ilyas, he had noted eleven lacerated wounds, resulting from fire-arm, on different parts of the body. Four, out of eleven injuries were opined to be exit wounds. Tattooing was present around some of the injuries. After internal examination, he expressed the opinion that death had occurred due to shock and haemorrhage, resulting from injuries Nos.8 to 11 (all of which were entry wounds). Probable time between injuries and death was opined to be immediate while probable time between death and postmortem was opined to be within 12 to 24 hours.
10. The ocular account was deposed to by Muhammad Iqbal (P.W.11), Muhammad Altaf (P.W.12) and Khawar Niwaz Sethi (P.W.17).
' Muhammad Iqbal while repeating the facts given by him in the F.I.R. (Exh.P.O./1);'also gave the relationship of the accused inter se. He also deposed about conspiracy said to have been hatched by all the accused four days prior to the occurrence, for murdering Muhammad Amin deceased.
He stated that Muhammad Nazir and Muhammad Pervaiz had informed him about the conspiracy prior to the occurrence but he did not pay any heed to that as he had entered into a compromise with the accused on Holy Book and had also paid a sum of Rupees twelve and half lacs as compensation to the complainants. During cross-examination, he admitted that he had mentioned the fact of conspiracy to the Investigating Officer vide supplementary statement (Exh.D.C.) made by him on the same day, i,e, 18-9-1984.
' He admitted that Muhammad Din P.W. Was his paternal-uncle while sister of Altaf (P.W.12) was married to Amin deceased. He stated that in the murder case of Akram, apart from himself, and Amin deceased, his other brothers and nephews were also challancd and that Amjad Saeed appellant in this case and his other relatives were P.Ws. Against them. He conceded that in the case of murder of Amanullah, a brother of Amjad Saeed, his cousin, appellants Jalil, Tariq and Aslam alias Achhu alongwith others were named as accused and Altaf P.W., eye-witness of this case, was also eye-witness in that case against them. He also admitted that in the case of murder of Aslam, brother of Amjad Saeed, apart from him and his deceased brother Amin, their other brothers, nephews and relatives numbering twelve, were challaned and the case was pending trial.
Although he denied about Amin deceased having been named as accused in cases of attempted murders and Arms Ordinance, but those F.I.Rs, were produced in defence, which contained the name of the deceased as accused. He denied that he had stated in his supplementary statement (Exh.D.C.) that apart from the accused named, some other persons were also seen accompanying them and that he could identify them if brought before him. However, on confrontation, he was found to have stated so. He expressed inability to state distinctly as to whose fire had hit whom.
According to him, he was at a distance of seven feet from Amin when he was fired at. He denied the suggestion that he had not witnessed the occurrence and had made a false report on account of enmity with the appellants.
11. Muhammad Altaf (P.W.12) while corroborating the statement made by Muhammad Iqbal complainant with regard to the actual occurrence, also claimed to have wintessed the collection of blood-stained earth, empties from the spot and of taking into possession of Car No,5252/GAC alongwith articles lying therein including blood-stained Namda. During cross-examination, he conceded being witness in the murder case of Amanullah against some of the accused and their relatives. Although he denied of having stated before the police that there were some other persons accompanying the accused (Appellants) and that he could identify them, but he was found to have stated so in his statement (Exh.D.D.) before the police. He expressed inability to state as to whose fire had hit whom and also about the number of shots fired by all the accused. He stated that he had not accompanied Amin deceased to the hospital and had visited the hospital on that night at 1 a.m. After the police had visited the spot.
12. Khawar Niwaz, who appeared as P.W.17, stated that he was taking meals alongwith Imtiaz Hussain deceased at 8-30 p.m. At Nirala Hotel, where Amin deceased came after few minutes accompanied by Ashraf deceased, Muhammad Iqbal (complainant), Muhammad Din and Altaf P.Ws. And that they also started taking meals. He named all the seven appellants to have come there armed with different fire-arms and of having fired shots from their weapons; as a result of which Amin, Ashraf and Imtiaz suffered injuries and died later. The witness, during cross- examination was not found to have given the names of any of the accused (appellants) in his statement (Exh.D.E.) before the police. He was found to have made statement entirely different from the one he made to the Investigating Officer during investigation. Therein he was found to have stated that some persons came from behind and fired shots; as a result of which, he, Imtiaz alongwith others suffered injuries.
13. Muhammad Nazir (P.W.6)_ deposed about conspiracy hatched by the appellants on 14-9-1984 at about 9-30 p.m. While sitting in the plot of Naz Cinema for murdering Muhammad Amin Pehlwan (deceased in this case). He stated that Amjad Saeed, Haroon Rashid, Muhammad Shahbaz and Iftikhar had said turn by turn that Muhammad Amin be murdered even if whole property was to be sold to take the revenge of their brothers, while Jalil, Tariq and Aslam alias Achhu had expressed concurrence turn by turn. He stated that he had informed about the conspiracy to Muhammad Iqbal P.W. On the following day. During cross-examination, he stated that he had made statement to the police 10/12 days, after the date, he had heard the conversation. On confrontation with Exh.D.B. His statement before the police, he was not found to have given the manner in which the accused had concurred with the suggestion of others. He admitted that he was permanent resident of Farid Town and that the said place was at a distance of three miles from the place of occurrence. He stated that he had gone alone to the cinema house. He conceded that some other persons were also roaming about in that plot. He gave out that he had not talked to any of the.
Appellants. He denied the suggestion of having made a false statement.
14. Muhammad Aslam, Constable, who was entrusted with the execution fo the warrants of arrest of the accused and had later also been entrusted with the proclamation issued against all the appellants appeared as P.W.15 and deposed those facts. He verified the reports made by him overleaf the warrants about his failure to execute the warrants. He also deposed about the pasting of the proclamations at the relevant places.
15. Muhammad Younas, A.S.I. (P.W.8), Amjad Karim, Inspector (P.W.16), Ashiq Ali, S.I. (P.W.18), Abdul Majeed Warraich, Inspector (P.W.19) deposed about registration of case, arrest of the accused, recoveries effected from' them and the investigation conducted by them. The witnesses who joined the investigation at the time of recoveries of weapons of offence from the accused were also examined to prove the recoveries. Evidence was also led about the recoveries effected from the spot.
16. Learned counsel for the appellants, after having taken us through the evidence, contended that the ocular account in this case has been admittedly deposed to by related, interested and inimical witnesses, that the recoveries of empties from the spot as well as recoveries of weapons at the instance of some of the appellants was of no consequence, as no weapon was sent to the Forensic Science Laboratory for comparison with the empties recovered from the spot, that the lonely statement of Muhammad Nazir (P.W.6), was absolutely insufficient to prove the charge of conspiracy, that there is no corroboration of the ocular account and that the evidence of abscondence is not helpful to the prosecution for proving the participation of the appellants in the crime. Learned counsel contended that the evidence of alibi led by three of the appellants of being out of country on the night of occurrence stands proved from the faultless documentary evidence produced during investigation, which was brought on record during trial.
17. Learned counsel for the State defended the judgment of the trial Court.
18. It may be mentioned at the very outset that the learned counsel, who had filed revision petition, wherein prayer had been made for enhancement of the sentences of the appellants from life imprisonment to death, had made prayer for the withdrawal of the revision petition, on account of the parties having entered into a compromise. Some of the relatives of all the deceased except Imtiaz deceased, and both the injured P.Ws. Had appeared to verify the factum of the compromise having been entered into between the parties. Statements of Haji Muhammad lqbal (complainant), brother of Amin deceased, Mst. Zuhaida alias Zebi, widow of Amin deceased, Mst.
Inayat Bibi, mother of Ashraf deceased, Muhammad ljaz, brother of Ilyas deceased, and Khawar Niwaz injured were recorded. Affidavit of Bashir Butt, father of Imtiaz deceased is also on file in support of the factum of compromise having been entered into between the parties.
19. Although empties of two types, i,e, .12 bore and .7 mm were collected from the spot and weapons were also recovered from some of the appellants, but none of the weapons recovered was sent for comparison to the office of the Forensic Science Laboratory. In the circumstances, the evidence of recoveries of empties from the spot as well as of arms recovered from some of the appellants, is of no consequence to connect any of the appellants with the crime.
20. The only witness apart from the complainant, who deposed about conspiracy at the trial is Muhamamd Nazir (P.W.6). There is no corroboration of ' his statement. All that the complainant stated about conspiracy is that he had been informed by Muhammad Nazir (P.W.6) and Muhammad Pervaiz (given up P.W.) that they had witnessed the appellants hatching conspiracy to murder Amin. But his statement in that regard apart from being hearsay suffers from another laxity also. In that he had not mentioned the fact of conspiracy having been hatched by the appellants in the F.I.R. He had disclosed that fact later while making supplementary statement.
' Muhammad Nazir while deposing at the trial had not referred to the presence of Muhammad Pervaiz at the time he had witnessed the hatching of conspiracy. His statement apart from being lonely in that regard also does not inspire confidence,-as there is no evidence to consider that he knew each of the appellants by name prior io the occurrence. Moreover, the conspiracy, according to him, was being hatched openly by the appellants while sitting in the plot of a cinema, where many other persons were moving about. It cannot be believed that the appellants would have all joined and chosen the plot of the -cinema to discuss their plan of murdering Muhammad Amin.
The evidence of conspiracy, in the circumstances, in our view is absolutely insufficient to maintain convictions of the appellants under section 120-B, P.P.C.
21. The statement of Khawar Niwaz, the only injured witness in the case who appeared at the trial as P.W.17 is of little value. In that he not only made improvements at the trial but rather made a wholly different statement than Exh.D.E., the statement he made before the police during investigation.
' It was found, during cross-examination, that he had not named any of the appellants or the weapon held by each one of them in his statement (Exh.D.E.) before the police.
' His statement at the trial is also contradictory to the medical evidence, in that, he had clearly stated at the trial that he alongwith Imtiaz deceased were taking meals since 5/7 minutes when the complainant and Amin deceased had come there and took seats for taking meals. However, during post-mortem examination the stomach of Imtiaz deceased was found empty. Had the witness been at the spot, he would have known that Imtiaz was done to death while he had yet to take the meals. His testimony, therefore, has to be excluded from consideration.
22. There is no dispute about the fact that Muhammad Iqbal and Altaf P.Ws., who had deposed the ocular account, are closely related inter se as well as to the deceased, and that they along with other family members were pitched against Amjad Saeed, Iftikhar, Tariq and Jalil appellants and their other family members because of enmity resulting from occurrences of murders and cases of attempted murders. They were inimically disposed of against each other's since quite a few years.
In the circumstances, their testimonies cannot be taken as safe evidence for convicting the appellants on capital charge's, particularly so when three of the appellants had successfully proved their absence from the country on the night of occurrence and being in Bangkok vide reliable and authentic documents. They had not disclosed their plea at the trial only. They had come up with that during investigation and the prosecution had all the chances to verify and disprove the same. In fact, the matter was thoroughly examined by different personnel's connected with the documents, which showed their travelling from Pakistan to Bangkok. The documents included, air travel tickets, passports, the entries made in the passports about their having travelled abroad and the travellers cheese issued to them and utilized by them. Ott examination of the documents available on record, we have also not been able to find any flaw in them.
' By referring to the plea of alibi of three of the appellants, while discussing the reliability of the testimonies of the eye-witnesses, we are not conceding the principle of falsus in uno falsus in omnibus, but we are taking note of the fact that in the circumstances of this case it appears difficult to distinctly burden the liability of some of the accused to others.
In the situation thus coming to light the evidence of ascendance even does not lend sufficient corroboration to the ocular account furnished by arch enemies.
23. Having considered all pros and cons of the case, we have reached irresistible conclusion that the prosecution has not been able to prove the case against the appellants beyond reasonable shadows of doubts. The appeal filed by them is, therefore, accepted and they are acquitted. They shall be released forthwith if not required for any other case.
24. The revision petition, for which the petitioner as well as his counsel had made prayer for withdrawal stand disposed of, in view of the prayer made by them and also for the reason that the respondents stand acquitted and so the question of enhancement of their sentences does not arise. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.