MUHAMMAD MUNIR FAROOQI, J.-Kamir and Mokha appellants were convicted under sections 460, 397/34 and 302/34, P. P. C. By then Additional Sessions Judge, Layallpur, on 29th November 1969, who sentenced them as under:-- Kamir. To death under section 302/34, P. P. C. Rigorous imprison--ment for seven years under section 397/34, P. P. C. And rigorous imprisonment for five years under section 460, P. P. C. Both latter sentences were ordered to run concurrently and were to be executable in case his death sentence was not confirmed.
Mokha. To transportation for life under section 302/34, P. P. C: Rigorous imprisonment for seven years under section 397/34, P. P. C, and rigorous imprisonment for five years under section 460, P. P.
C The sentences were ordered to run concurrently.
Their co-accused Sanatta was given the benefit of doubt and acquitted, while Waryam is still absconding as be has not surrendered before any Court so far to face the trial. To challenge their convictions they have filed separate appeals. Cr. A. No. 895/69 is registered on behalf of Kamir appellant and Cr. A. No. 46 of 1970 stands in the name of Mokha, while the record is also before us for the confirmation of death sentence awarded to the former under the provisions of section 374 of the Criminal Procedure Code. These two appeals and the reference are being disposed of by this judgment.
2. The incident involving the lurking house trespass by night for dacoity with murder took place on the night between 20/21st January 1969, in Chak No. 591, Gangapur as reported to S. I. Shah Nawaz Khan (P.W. 26) by Murad A.I (P. W. 20) at 9 a.m. On the next morning vide Exh. P. A. In Civil Hospital, Jaranwala.
3. The prosecution case in brief is that Murad A.I (P. W. 20), his elder brother Jalal (P. W. 24), their cousin Bashir (P. W. 21), their nephews Manzur (P. W. 23), Asghar A.I (P. W. 25) and Fazal Karim (deceased) lived in a joint haveli having a boundary wall around it with two entrances; one in the cast and the other in the west. Fazal Karim (deceased) had set apart a kotha for his cattle in the southern corner of this haveli, while Manzur and Bashir had their cattle shed on the eastern side. On the fateful night Bashir (P: W. 21) woke up on the bar-king of his doffs and after got out in the courtyard saw four persons taking away two Bullocks belonging to Fazal Karim from the eastern door of the haveli. He raised an alarm. Murad A.I, Jalal Din, Manzur, Asghar A.I P. Ws. And Fazal Karim (deceased) also came out and joined him in giving hot chase to the culprits. Fazal Karam (deceased) being the owner of the two bullocks was naturally more concerned about it, so he was going ahead of the party in pursuing them. They succeeded in overtaking them after the culprits had covered a distance of about four squares from their haveli. Jalal Din P. W. Was carrying a torch, which he frequently flashed at them and is the light of the same they saw Fazal Karim (deceased) grappling with one of the dacoits, while the others gave him lathi blows to retrieve their companion, but Fazal Karim (deceased) did not loose his grip on him. On this one of the dacoits fired a shot at him which felled him to the ground. They also fired two ineffective shots towards the companions of the deceased threatening them to the same fate, so they gave up the chase and the culprits made good their escape with the two bullock. The eye-witnesses then attended to Fazal Karim (the injured person) and lifting him bodily brought him to his house. On hearing the report of the gunshot their womenfolk had also come out of the haveli and joined this party, one of them arranged a cot the injured person, who was then carried to Gangapur Dispensary. On the advice of the Compounder of the said Dispensary They took him to Jaranwala hospital by train where Dr. Abdul Ghafoor 1P. W. 2) received the injured person at 8 a.m. And he informed the police about it by telephone which brought Sub-Inspector Shah Nawaz Khan (P. W. 26) to the hospital where he was given ruqqa Exh. P. J. About the arrival of the injured person n the hospital. He enquired from the doctor about tile fitness of the injured person to make a statement vide Exh. P. K., who replied in the negative vide his endorsement Exh. P. K./1. On this the Sub-Inspector recorded state--ment (Exh. P.
A.) of Murad A.I P. W. Which was forwarded to Police Station Lundanwala, where Moharrir Head Constable Murtaza Hussain (P. W. 7) drew up formal first information report Exh, P. A./1 and registered the present case. The doctor had also handed over the blood-stained clothes (P. 5 to P.
7) of Fazal Karim (deceased) to Sub-Inspector Shah Nawaz Khan P. W. Vide Exh. P. L. The doctor also delivered to him a phial contain--ing one pellet which he had recovered from the injuries of Fazal Karim and was taken into possession by the Sub-Inspector vide Exh. P. T. The Sub-Inspector then proceeded to the spot by train and reached there at 1-30 p.m. He secured footprints of four different persons vide Exh. P. C. By preparing molds from near the southern outer door of the haveli. . He also collected blood-stained earth from the field where Fazal Karim was injured and make it into a sealed parcel vide Exh. P. D. He also recovered from there a fellow of shoe (P. 2) and made it into a parcel vile Exh. P. E. He also picked up two empties of 12 bore (P. 3/1-2) from that field which were also sealed into a parcel vide Exh. P. F. Jalal Din P. W: produced before him the torch (P. 4) which was taken into possession vide Exh. P. G.
Station House Officer Nazar Hussain Shah (P. W. 27) joined him at the spot at 4-30 p.m. On the same evening. Sub-Inspector Nazar Hussain Shah P. W. Deposited two sealed parcels containing the bloodstained earth and the empties with Mumtaz Hussain, Moharrir Head Constable P. W. For safe custody in the Malkhana on 23 January 1969. The trackers Mamoora (P. W. 12) and Mahmood (P. W. 13) had already been deputed to trace out the footprints of the culprits and station House Officer Nazar Hussain Shah P. W. Had followed them. The tracks terminated on the sixth day near the house of Kamir appellant in Chak No. 627 G. B., who was joined in the investigation on 29th January 1969, by S. H. O. Nazar Hussain Shah (P. W. 27). He brought him to Chak No. 582 where afterrd his interrogation he arrested him. Kamir appellant while in custody led him to the house of one Ahma and got recovered one of the two bullocks vide Exh. P. M. In the presence of Rehmat A.I Lambardar, Abdul Ghafoor (P. W. 17) and A.I Ahmad (P W. 18) as a consequence of which Ahma was arrested under section 41), P. P. C. Exh. P. M./ I is the rough site plan of this place of recovery. The S. H.
O. Brought both of them to Layallpur and got them lodged in the judicial lock-up on 30th January 1969, vide his application Exh. P. W. 27 and the relevant order of the Magistrate concerned about it is Exh. P. W. 7/I. On 30th January 1969, Sub-Inspector Shah Nawaz Khan (P. W. 29 arrested Sanata (acquitted accused) by raiding his house in Chak No. 629 and taking him to Layallpur got him lodged in the judicial lock-up along with aforesaid Kamir and Ahma on the same day. On the next day, i.e., 31st January 1969, the Sub-Inspector arrested Mohka appel--lant from Jhok Ditta of Chak No. 433 and recovered the second bullock from his kotha vide Exh. P. B. In the presence of Muhammad Yaqub (P. W. 14), Fazal Ahmad (P. W. 15) and Ghulam Sarwar (not produced) Exh. P. B./1 is the rough sketch of the place of this recovery. He then brought him to Layallpur and got him lodged in the judicial lock-up vide his application Exh. P. W. 6/A. The order of the Magistrate concerned in this respect is Exh. P. W. 26/13. The two appellants and Sanatta accused were warned that they might be subjected to test identification parade so they should cover their faces. On the application Exh. P. W. Of Sub-Inspector Shah Nawaz Khan (P. W. 26) the test identification parade was held in District Jail, Layallpur on 6th February 190, trader the supervision of Mr. Mahmood Pervaiz Khawaja (P. W. 22), then posted as Magistrate 2nd Class at Layallpur. In the course of this test identification parade Mokha and Kamir appellants were identified by the five eye-witnesses, namely, Murad A.I (P. W. 20), Bashir (P. W. 21), Manzoor (P. W. 23), Jalal Din (P. W. 24) and Asghar A.I (P. W. 25). Sanatta (acquitted accused) was, however, not identified by Murad A.I and Jalal Din P.
Ws., Exh. P. W. Is report of the Magistrate about the test identification parade.
On the application Exh. P. X of Sub-Inspector Shah Nawaz Khan (P. W. 26) the same Magistrate had also supervised a track identification parade of the two appellants and Sanatta (acquitted accused) which was held on the same day in the same Jail vide his memo. Exh. P. H./1, in the course of which Mamoora (P. W. 12) correctly identified the foot prints of all three of them while Mahmood (P. W. 13) correctly picked up the footprints of Mokha and Kamir only. The last mentioned tracker could not identify the footprints of Sanatta (acquitted accused). Exh. P. X/2 is the certificate of the Magistrate about this identification.
On 12th February 196'), S. H. O. Nazis Hussain Shah P. W. Moved the Ilaqa Magistrate for issuance of warrants for the arrest of Waryam, the absconding accused, who was declared a proclaimed offender in the case.
On 14th February 1969, Kamir appellant while in custody led S. H. O. Nazar Hussain Shah (P. W. 27) to his residential kotha in Chak No. 627/GB called Thatta Khokheran and got recovered pistol (P. 8) after digging it out from one of its corners in the presence of Muhammad Sharif (P. W. 19) and Ziada Khan which was taken into possession and sealed into a parcel vide Exh. P. N. (Exh. P. N./A being its duplicate) and Exh. P. N./1 is the rough site plan of the place of this recovery. As Kamir appellant had no licence for the possession of a pistol he was separately challaned under section 13 of the West Pakistan Arms Ordinance. The sealed parcel of the pistol was deposited with Mumtaz Hussain, Moharrir Head Constable on the same day for safe custody in the Malkhana. He also got prepared site plan Exh. P. Y and putting his notes in red ink on the same he signed it in token of its correctness.
Sub-Inspector Mufti Munir (P. W. 4) examined pistol (P. 8r and the crime empties (P. /1-2) and the comparison held by him revealed that the two 12 bore crime empties (P. 3/1-2) were fired from pistol (P. 8) vide his report Exh. P. CC. The composite photomicrograph by him for this comparison is Exh. P. CC./1.
4. Fazal Karim, the injured person, was admitted in the hospital on 21st January 1969, at 8 a.m., as stated above and examined by Dr. Abdul Ghafoor (P. W. 2) who found the following injuries on his person vide Exh. P. L.-
(1) A contused wound 1 -- " x -- ' scalp deep on the left side of head 3 -- ' above the left ear.
(2) A contused wound 3/8 x -- " skin deep on prominent on left cheek.
(3) A contusion mark 3 -- x 1' on the back of right shoulder oblique.
(4) A firearm wound -- ' x -- " abdominal chest deep on right side of chest 8' below the axilla with seven pellet wounds around it -- 'x -- ' In an area of 2' x 2'. The rib underneath was fractured and one pellet was found from the wound. rd January 1969, at 7-45 a m. The doctor incharge sent intimation Exh. P. Q. About his death to Police Station Civil Lines, Layallpur, when Ghulam Hussain (P. W. 5) went there and despatched the dead body to the mortuary under the escort of Foot Constable Barkat A.I (P. W. 6) after the necessary preparation of injury statement Exh. P. R. And the inquest report Exh, P. S.
5. On 23rd January 1969, at 12-30 p.m., Dr. Imtiaz Ahmad (P. W. 3) held autopsy on the dead body of Fazal Karim (deceased) and found the following injuries vide Exh. P. Z.:-
(1) A firearm wound -- ' x -- " on the right side of chest lateral aspect.
(2) Seven firearm wounds -- ' x -- ' each in an area of 3' x 3" on the lower part outer aspect right chest.
(3) A lacerated wound -- ' x -- ' skin deep on the left cheek.
(4) Stitched wound 1" on the left side of head.
Injuries Nos. 1 and 2 were caused by firearm while injuries Nos. 3 and 4 by blunt weapon. All the injuries were anti-mortem.
He removed three pellets lying by the side of dorsal vertebrae. The abdomen was full of blood and the stomach contained fluid material. A pellet was found lodged in the vertebral column. He removed two pellets from the large intestines which was lacerated. The live., was also lacerated at two places 1" x 1' and 1 -- ' x 1" through and through. He also removed a pellet which was lodged in the right kidney. The right kidney was lacerated 1' x 1', 9th and 10th ribs were also fractured. Two pellets could not be traced in the dead body as the mutilation of the body was avoided. Death in his opinion was due to shock and haemorrhage. Injuries Nos. 1 and 2 were sufficient to cause death.
Time between injuries and death was 48 to 72 hours and between death and post-mortem gas within 12 hours.
The doctor handed over sealed phial and the relevant papers to Foot Constable Barkat All who brought them to Police Station Lundianwala and delivered the same to Mumtaz Hussain, M. H. C. (P.
W. 7) vide Exh. P. O.
6. In addition to the above detailed medical evidence and that of the recoveries the prosecution had relied for its case at the trial on the testimony of Murad A.I (P. W. 20), his paternal uncle Bashir (P. W. 21), his nephew Manzur (P. W. 2s) his brother Jalal (P. W. 24) and his nephew Asghar A.I (P. W.
25) for the ocular account of the occurrence, who had duly supported the above narration corroborated by the proceedings of the test identifica--petition parade Exh. P. W. About the identity of the two appellants and the track identification parade Exh. P. X./1 in respect of their footprints. To reinforce this case the corroboration was also sought from the evidence of Mufti Munir (P. W. 4), the Firearm Expert, who had compared crime empties (P. 3/I-2) and the pistol (P. 8) and opined that crime empties (P. 3/1-2) were fired from this pistol.
7. In their turn the two appellants and their companion Sanatta plead--ing not guilty to the charge had denied all the allegations made against them by the prosecution witnesses and averring their innocence stated that they were implicated, on account of suspicion only, but led no evidence in defence.
8. Learned Judge accepted the prosecution evidence as true and correct account of the occurrence and convicted the two appellants but as there was no corroboration about the participation of Sanatta in this offence he gave him the benefit of doubt and acquitted him as stated above. This finding has been assailed before us as erroneous being based on discrepant, con--tradictory, inconsistent and incredible evidence and on being taken through the record we are inclined to agree with the contentions raised by the learned counsel. We propose to discuss the various sets of the above evidence of the prosecution seriatim.
9. Direct evidence.-(I) This evidence has been supplied by the above---named five eye- witnesses, who are closely related inter se as also with Fazal Karim (deceased). We however, cannot discard their evidence merely on ac--count of their relationship, but the account of the occurrence given by them does not inspire confidence at all as the version put forth by them is extremely improbable and unnatural. It does not appeal to reason at all that on being woken up on the barking of the dogs and the alarm raised by one of them they found four dacoits getting out of their courtyard with two bullocks and without making any preparation to retrieve them they followed them on their heels empty-handed and none else joined them from the abadi as it would be against the normal course of events in village life, where cattle thieves are normally considered as common enemies and all the residents liberally co-operate in coming to the rescue of each other in such an event. If any alarm had been raised by these six persons just when the four dacoits were getting cut of the haveli with the two stolen bullocks all able-bodied persons living in the neighbourhood of this haveli would have swarmed out with, formidable weapons in their hands and surrounded the dacoits from all sides before they could even get out of the abadi and would never have permitted them to escape with the stolen bullocks.' The assertion of these eye- witnesses that no one had joined them from the abadi of the Chak in spite of their alarm was not easy to believe. . If at all these witnesses had given a chase to the dacoits as claimed by them, they could have easily followed them to their destination by keeping themselves at safer distance from them and then lead the police to that place which would have facilitated the immediate recovery of the cattle from their possession. The story of this hot chase given by them to the dacoits without any preparation to meet the eventuality of any clash with them was likewise incredible. This claim of the prosecution witnesses could not stand the test of scrutiny at all even in the light of their previous statements. Bashir (P. W. 21) had stated in his statement before the police (copy Exh. D. B.) that he woke up on the barking of the dogs and finding the outer door of the haveli opened suspected some theft, so he went to the cattle-shed and found the two bullocks missing and on his alarm the other P. Ws. Assembled in the courtyard and from among them Jalal had a torch with him and on going out of the haveli they flashed the torch and saw that culprits were taking the two bullocks towards the Railway line. Manzur (P. W. 23) had also made a similar statement before the police in Exh. D. C. Both of them were confronted with the relevant portions and denied to have made any such statement. Murad A.I (P. W. 20) had stated before the committing Magistrate that when they assembled and started pursuing the culprits the accused had gone out of the village at a distance of one square and when confronted with this portion of his statement he urged that he did trot remember to have stated like this before the committing Magistrate. This deposition of the witnesses fn their earlier statements clearly belied the assertion of the prosecution witnesses at the trial that they saw the culprits getting out of the courtyard with the two bullocks. Murad A.I (P. W. 20) had made many other improvements in his earlier statement Exh. P. A. For example he never stated therein that the culprits had threatened them with dire consequences or that Fazal Karim (deceased) had grappled with one of them and that to retrieve their companion one of the culprits had given him three dang blows. He had also omitted to mention in Exh. P. A. That it was a tall stature person who had fired the shot at Fazal Karim (deceased) in the flash of the torch lit by one of his companions when they had saved themselves by putting off the torch and lying down by the side of the banns of the field. This witness had pointed out towards Kamir appellant at the trial as the person who had fired the pistol shot and Sanatta (acquitted accused) as the person having inflicted dung blows at Fazal Karim (deceased) and to Mokha appellant as a person who was caught hold of by him but before the committing Magistrate he expressed his incapability to point out in Court the person who lead inflicted the dang blows on the deceased. .
As regards the two ineffective shots fired towards them he had stated before the committing Magistrate that the culprits had fired twice in the air. When confronted with all these inconsistent statements these witnesses failed to explain all these improvements. 1t was admittedly a pitch dark night and the culprits were not previously known to these witnesses. They were pursuing them keeping themselves at a safe distance from them, so it was unimaginable that they would have remembered their features and figures in momentary glimpse of these culprits in intermittent flashes of the torch light thrown at them from the distance. Murad A.I P. W. Had stated in Exh. P. A.
That several other persons along with them had followed the culprits, but he went back on this statement apparently because no one else was prepared to support this unnatural and improbable version by then: We are, therefore, unable to place our implicit reliance on the testimony of these witnesses in view of these inherent improbabilities in their statements.
1t appears that Fazal Karim (deceased) on the barking of the dogs get up and finding the culprits getting out of the courtyard with his bullocks followed them raising an alarm and by the time the other witnesses got out of their warm beds in this cold night of the wintry season and collecting other residents of the neighbourhood set out in their pursuit the culprits had covered a long distance with the two stolen bullocks. Fazal Karim being the owner of the cattle feeling more concerned over this theft succeeded in tracking them and was shot down on reaching near them.
They must have fired more than one shot and as it was dark night only one proved effective which dropped him dead on the ground. The reports of these gunshots alarmed the other party, who out of fear did not go to that direction till the culprits had succeeded in making good their escape, so they had no occasion to see any one of these dacoits. Taking this view of the matter we reject outright the ocular account of this occurrence given by them which is apparently a result of prolonged deliberations between them and the police.
Personal identification.--(II) After having held above that none of these five eye-witnesses had occasion to see any of the dacoits the identification by them at the test identification parade cannot hold the ground, especially when they had given not the least description of any of the alleged dacoits either in their statements before the police or b.-fore the Magistrate who held this parade. Kamir appellant was arrested on 29th January 1969, from Chak No. 627 G. B. And taken to Chak No. 582 for interrogation in the course of which he led to the recovery of one of the stolen bullocks from one Ahma on the sane day, who was also arrested under section 411, P. P. C. Both of them remained with S. H. O. Nazar Hussain Shah (P. W. 27) for the whole day and were lodged in the judicial lock-up on the next day, i.e., 30th January 1969. They must have been taken to Police Station Lundianwala in the meanwhile and shown to the prosecution witnesses there before taking them to Layallpur for their remand to judicial lock-up.
There is an important factor in the case which has persuaded us to come to this conclusion, and is disclosed by application (Exh. P. W. 27) submitted by S. H. O. Nazar Hussain Shah (P. W. 27) before the Magistrate for the remand of the accused including that of Sanatta (acquitted accused) along with Kamir appellant and Ahma. This Sanatta (acquitted accused) was arrested on a different and distant place by another Police Officer Sub---Inspector Shah Nawaz Khan (P. W. 26) on 30th January 1969, from his house in Chak No. 629 and then taken to Layallpur for lodging him in the judicial lock-up. This coincidence would go a long way to show that both the police officers met at their common place, i.e., Police Station Lundian--wala and then one of them had brought them to Layallpur together for lodging them in the judicial lock-up They had thus remained in the police custody for pretty long time. S. H. O. Nazar Hussain Shah admittedly had two persons of the Chak of the complainant with him at the time of this arrest who could have easily been deputed to bring these witnesses to the police station for showing the culprits to them to facilitate their identification later at the parade.
Mokha appellant was also arrested on the next day and could likewise be shown to the prosecution witnesses before being sent to Layallpur Jail. It was on account of his guilty conscience that Nawaz Hussain Shah, Sub---Inspector hesitated to admit the presence of these two persons of the complainant Chak with him at the time of this recovery as would be borne out by the note recorded by the learned trial Judge during his evidence. It is recorded therein that this witness had been giving evasive replies to a number of questions put to him in the cross-examination and also avoided to reply this question in spite of the fact that it was repeated to him four times. In this background we cannot exclude the possibility that the eye---witnesses had been sent for and shown the two appellants at the police station. We are also supported in this inference by the testimony of the two track witnesses Mamoora (P. W. 12) and Mahmood (P. W. 13), who had frankly conceded that they were shown the footprints of the two appellants at the police station. It will, therefore, not be safe to rely on the result of this test identification parade for corroboration of their testimony.
Track Identification.-(III) The two trackers Mamoora and Mahmood P. Ws., as stated above, had conceded during their examination-in-chief at the trial that they had been shown the footprints of the two appellants at the police station which had facilitated their identification at the parade held in the Jail, we have therefore to exclude this evidence from consideration in this case.
(IV) Recoveries.-One bullock was recovered from Ahma, who is not an accused in this case and was separately tried for an offence under section 411, P. P. C., but Kamir appellant had been yoked in the present case for leading the police to this recovery although he was not show: n to have any domain over this bullock indicating any criminal intent on his part. It was strange that like Kamir appellant Ghulam Sarwar Lambardar of Chak No. 430 had led the police to the kotha of Mokha appellant and got recovered the second bullock from him but this Lambardar was not put on trial in this case although his case was at par with that of Kamir appellant. He appears to have been let off after, he had agreed to attest the relevant memo. Exh. P. B. Which he later declined to support and was given up as a pro--secution witness. Similarly Rehmat A.I Lambardar of the Chak of Ahma from whom Kamir appellant had led the recovery of first bullock had declined to support this recovery and had been given up as a witness. The other two witnesses of these two recoveries, namely, Muhammad Yaqoob (P. W. 14), Fazal Ahmad (P. W. 15) of one bullock, Abdul Ghafoor and A.I Ahmad of the second had accompanied the police from the Chak of the complainant, who admittedly had joined the police in the investigation by sheer chance and the pretext put forth by them for their chance associa--petition with the police at the time of these two different recoveries were quite queer. Abdul Ghafoor and A.I Ahmad claimed to have been visiting different Chaks for purchasing the buffaloes which like the other chance witnesses they never purchased when they suddenly came across the police party and were joined in the investigation of this case, while Muhammad Yaqub was lifted from Katchery compound by the Sub-Inspector Syed Nazar Hussain Shah to accompany him to Tandlianwala and Fazal Ahmad was picked up from Mi Di Jhuggi near the bus-stand, who met them by chance there. In view of the exclusion of the aforesaid respectables of the locality who had attested the recovery memos. We are not prepared to place our implicit reliance on the testimony of these chance witnesses about these recoveries.
The same would be true of Muhammad Sharif (P. W. 9), who had attended on the recovery of pistol (P. 8) at the instance of Kamir appellant as Ziada Khan and Niamat Khan, the two other attesting witnesses of the relevant memo. Had declined to support this recovery and were given up as won over at the trial.
(V) Report of the Firearms Expert.-This report of the Firearms Expert was never put to Kamir appellant during his examination under section 342 of the Criminal Procedure Code and has therefore, to be excluded from con--sideration on this short ground alone. Reliance is placed on Muhamnraa Akbar Khan Bugti v. State (PLD 1967 Kar. 186).
10. As a result of this discussion the prosecution has failed to bring home any of the charges against any of the appellants, we have, therefore, to accept these two appeals and setting aside the convictions and sentence of Kamir and Mokha appellants direct that they shall be set at-least forthwith if not required in any other case.
The reference is answered accordingly.