' Din Muhammad, Muhammad Inayat sons of Hassan Din, Karamat Ali, Talib Ali, sons of Rehmat Ali and Akbar Ali son of Din Muhammad, appellants, were convicted under section 302/148/149, P.P.C.
By the learned Additional Sessions Judge Lahore on 31-5-1988 and were sentenced to life imprisonment each for the murder of Haji Atta Muhammad. They were also sentenced to a fine of Rs,10,000 each and in default thereof to suffer one year's R.I. Each. Likewise, the appellants were convicted and sentenced to suffer two years' R.I. Each under section 148, P.P.C. It was directed that the sentences shall run concurrently. The benefit of section 382-B, Cr. P.C. Was extended to the appellants. It was observed that in case of recovery of fine, the same shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. The prosecution case as mentioned in the F.I.R. Exh.P.1 is that on 17-9-1984, Nazir Ahmad son of Khair Din, Faqir Muhammad son of Siraj Din, Ali Muhammad son of Ghulam Muhammad, Muhammad Bashir son of Mehtab Din and Safdar Ali son of Muhammad Din residents of Kot Khawaja Saeed came to Lahore Cantonment Courts to attend their personal affairs. Haji Atta Muhammad deceased had also come with them. All of them were sitting under the shadow of a tree in front of the office of Muhammad Hussain Advocate. Haji Atta Muhammad was sitting on a wooden bench at some distance from the P.Ws. At about 11-15 a.m. Muhammad Riaz alias Billa, son of Rehmat Ali armed with a carbine, Talib Ali, Karamat Ali, Din Muhammad, Akbar All and Inayat Ali, all armed with pistols emerged from the office of Muhammad Hussain Advocate and shouted a lalkara that they would not allow Hajji Atta Muhammad to go alive. Thereafter Riaz alias Billa, absconder, fired from his carbine, which hit Haji Atta Muhammad on his back and the victim died at the spot. The appellants also fired from their respective pistols ineffectively. After committing the offence, the accused ran away from the spot. The accused were chased by the witnesses. They were, however, able to make good their escape by boarding a car No, LH-6366.
3. The motive for the commission of the offence was that the deceased Haji Atta Muhammad and the appellants had a background of enmity on account of number of murders having taken place in the families of both the parties.
4. Muhammad Nawaz Arif, Inspector P.W.12 stated that the F.I.R. Exh.P.1 was recorded by Rao Muhammad Usman, Muharrar on the statement of Nazeer P.W. In his presence. He inspected the spot, prepared the inquest report Exh.P.N. And injury statement Exh.P.O. Of the deceased. Blood- stained earth was taken into possession vide memo Ex. PJ. The witness took into possession one empty cartridge of .12 bore. An empty cartidge of 32 bore Ex.P16 was taken into possession vide memo. Exh.P.K. From the place of occurrence. Two wooden benches Exh.P.17 and P.18 were found blood stained and were taken into possession vide memo Ex.PL. It was found by the witness that the dead body of Haji Atta Muhammad was lying over these wooden benches. The dead body was sent to mortuary for subjecting it to post-mortem examination. The last-worn clothes of the deceased Exhs.P.1 to P.5 were taken into possession vide memo. Exh.P.C. At the instructions of the witness, Muhammad Yaqub Draftsman prapared the site plan Exh.P.B. Din Muhammad and Muhammad Inayat appellants were arrested by the witness on 23-9-1984. Karamat Ali, Talib Ali and Akbar Ali, appellants, were arrested by him on 30-9-1984. On 2-10-1984 Din Muhammad appellant while in police custody led to the recovery of a .32 bore revolver Exh.P3 from inside his Haveli which was taken into possession vide memo. Exh.P.D. Akbar Ali accused got recovered a .32 bore revolver Exh.P.B. Along with four live cartridges Exh.P.13/1-4 vide memo. Exh.P.E. On the same day Inayat Ali appellant led to the recovery of .32 bore revolver Exh.P9 and three live cartridges Exh.P.14/13, which were taken into possession vide memo Exh.F.F. On 2-10-1984, .32 bore revolver Exh.P.11 and four live cartridges Exh.P.12/1-4 were recovered by the witness at the pointing of Talib Ali appellant. Similarly, Karamat Ali accused led to the recovery of .32 bore revolver Exh.P.10 and four live cartridges Exh.P.15/1-4 which were taken into possession vide memo. Exh.P.G.
5. Exh.P.S. Is the report of the Chemical Examiner, Lahore, which disclosed that the two sealed parcels containing earth and clothes of the deceased were stained with blood. These articles were sent to the Serologist, Government of the Punjab, Lahore, for determination of the origin of blood.
The report Ex.P.T. Of the Serologist showed that the result was positive. It was found out that the articles examined by him were stained with human blood. The reports of the Director, Forensic Science Laboratory, Punjab, Lahore, vide Ex.PU and PV were also found positive.
6. Dr. Waseem Ahmad P.W. 13 conducted the post-mortem examination upon the dead body of Haji Atta Muhammad on 18-9-1984 and found the following injuries on his person:-
(1) Gunshot wound of entrance stellate in shape with inverted margins, burning and blackening around 3 x 3 c.m. On left side of back of chest 3 c.m. Outer to the mid-line and 15 c.m. Below the nape of neck.
(2)(a) Circular fire-arm wound of entrance with inverted margin 1 x 1 c.m. At the back side of right chest 6 c.m. Above and to the right of injury No,1
(b) With its exit wound oval in shape with margins 1 x .8 c.m. Present in front of right side of chest 5 c.m. Above and inter aspect of right nipple and 10 c.m. Outer to the mid line.
' It was opined by the Doctor that death took place on account of injury to the thoracic organs and abdominal Viscera leading to hemorrhage and shock. All the injuries were ante-mortem and were caused by fire-arm. The probable time between death and injuries was immediate. The post- mortem examination was conducted within 36 hours after death.
7. The ocular account was provided by Nazir Ahmad P.W.6, Safdar Hussain P.W.7, and All Muhammad P.W.9. The witnesses supported the prosecution case as disclosed in the F.I.R.
8. The appellants while making statements under section 342 Cr.P.C. Denied the allegations levelled against them. While answering question No,3, Din Muhammad appellant took the plea saying: "there was no person by the name of Muhammad Razzaq brother of Karamat Ali accused."
' It was further stated by the said appellant while answering question No,6 that: "the deceased was a notorious smuggler and that he had links with the local police. He had long- standing enmity with him and his brothers. Being a notorious smuggler he had so many other enemies in the area on account of his activities."
' It was further disclosed that the deceased was once arrested in a smuggling case of huge quantity of gold, and was tried by a Military Court. He was convicted and sentenced accordingly.
He was also tried, convicted and sentenced for the offence of taking out both the eyes of one Chiragh. The appellant further stated that he appeared as prosecution witness against the deceased in that case. It was added that the prosecution witnesses were his companions in the smuggling transactions. The appellant concluded his statement by saying that he and his entire family had been implicated by the complainant party falsely in this case on account of previous enmity and ulterior motive with the active connivance of Mushtaq Ahmad A.S.I. Who happened to be a close relative of the complainant party. Further, the said A.S.I was posted at that time at Police Station North Cantt. The other appellants also denied the allegations and pleaded their innocence.
10. Muhammad Ashraf, Head Constable P.W. North Cantt. Lahore, was produced as D.W.1 by, the appellants. He produced Roznamcha of the police station from 17-8-1984 to 5-10-1984 showing arrival and departure of A.S.I. Mushtaq Ahmad in Police Station North Cantt: side Exh.D.G. To D.2/3.
11. I have heard the learned counsel for the parties at considerable length. Mr. Rafique Ahtnad Bajwa, appeared in the case as amicus curiae on Court's call. He addressed arguments generally about the prosecution witnesses with great lucidness. He argued that the prosecution did not succeed in proving its case against appellants beyond reasonable doubt. To begin with, learned counsel for the parties placed on record a compromise deed having been entered into by the appellants and the complainant party. On the basis of this compromise, the learned counsel for the appellants argues that their sentence may he reduced to the period already undergone by them. I am afraid, I cannot agree with the submission made by the learned counsel. It can he observed that the compromise entered into between the accused and the complainant party cannot be pressed A into service for the purpose of reduction of sentence of life imprisonment to a lesser sentence under law. The Hon'hlc Supreme Court of Pakistan in Pir Bakhsh etc. v. The State (1985 SCMR 2068) accepted the compromise between the accused and the complainant party and proceeded to reduce the sentence of the convicts to the period already undergone by them in a case under section 304/34, P.P.C. The learned counsel for the parties relied upon this case.
However, in the case in hand, the conviction has been recorded against the appellants under section 302/148/149, P.P.C. Thus, the authority cited is distinguishable and in my view, does not apply to the facts of this case. Under section 302 P.P.C. Only two sentences namely sentence of death or imprisonment for life plus fine can be awarded to an accused person. There is no other sentence which can be given to an accused person in a murder case under the said provision of the P.P.C. I am, therefore, of the considered view that the compromise between the parties cannot at all be made a basis for the reduction in sentence in a case like this. The contention is therefore, repelled.
12. Then, alternatively, learned counsel contends that thcre was absolutely no evidence on record to connect the appellants with the commission of the crime. On this basis, the learned counsel submits that the appellants may be _ acquitted for lack of evidence against them. Learned counsel for the complainant and the State did not oppose the prayer of the learned counsel for the appellants.
13. In my view, the prosecution has miserably failed to bring home the guilt to the appellants. Naner Ahmad P.W.6, Safdar Hussain P.W.7 and All Muhammad P.W.9, are the eye-witnesses in the case. Ali Muhammad P.W.9, is admittedly related to the deceased. He also admitted his enmity with the accused in his evidence. On this score, his evidence can safely be excluded from consideration.
Nazeer Ahmad P.W.6 and Safdar Hussain P.W.7, too cannot be accepted as trustworthy and independent witnesses in the case. I have scrutinized their statements and I find that they remained deeply connected with the affairs of the deceased Atta Muhammad right from the very beginning. These witnesses have given every details about the activities of the deceased in their statements. I am, therefore, of the view that these are certainly interested witnesses. Nazeer Ahmed P.W.6, admitted in cross-examination that he knew the details of the long-standing enmity between the parties. It was disclosed by the witness that the deceased had 8/10 squares of land in Wara Allandad. Similarly, he mentioned that the deceased and his three brothers owned 30/40, squares of land in Pattoki and that they also had some land in District Sahiwal. However, the exact extent of the land owned by the deceased in the said district could not be told by the witness. It was conceded by the witness that the deceased was arrested in a smuggling case and some gold was recovered from him. The witness did not specifically deny the recovery of about one maund of gold, from the deceased. This clearly shows that the witness was very close to the deceased and perhaps this was the reason that he knew about the activities of the deceased in such minor details. The witness milted frankly that he did not have any personal work in the Cantonment Courts on the day of occurrence. I am, therefore, persuaded to disbelieve the evidence of the witness. The possibility cannot be ruled out that the said witness might have been introduced later on by the complainant party on account of his intimate relations with the deceased to become the complainant in the case. If admittedly he had no personal work in the Cantt: Courts on the day of occurrence, then certainly his presence at the spot becomes highly doubtful. He failed to give any satisfactory explanation for his presence in the premises, where occurrence took place. Almost similar is the position in regard to the evidence of Safdar Hussain P.W.7, which cannot be accepted as true and as such is discarded by me outright. This witness admitted in his evidence that he knew the deceased for the last 7/8 years and that he had been seeing him in the Imambarah of Faqir Muhammad P.W. From this, it can be concluded that the witness and the deceased had been visiting the Imambarah together and that the deceased might be having sympathy with Shia sect of Islam. He too could not explain as to why he had gone to Cantt. Courts on the day of occurrence without any set purpose. He has departed from the evidence of other witnesses by saying that the appellants fired at the deceased Atta Muhammad which, however, missed the target.
' It is strange enough that the so-called eye-witnesses did not even raise a little finger to apprehend the accused when they committed the offence. They did not raise any alarm on the alleged commission of the murder by the appellants. This clearly demonstrates beyond doubt that the eye-witnesses were not present at the spot. Their evidence does not inspire confidence and is not corroborated by C any other unimpeachable source. The crime empties allegedly recovered from the place of occurrence do not find any mention in the inquest report Exh.P.N. Columns No,22 and 23 of the said report Ex.PN were left blank for unknown reasons by its author. If in fact these empties were recovered from the spot, there can be no earthly reason not to mention such an important fact in the relevant columns of the inquest report. Thus it can certainly be said that no recovery of crime-empties from the place of occurrence was effected by the investigating officer as deposed by him in his evidence. Further the recoveries were not attested by the competent witnesses as commanded by the rovisions of section 103, Cr.P.C. Muhammad Tufail P.W.5, is one of the recovery witnesses. He came from village Jallo which is situated at a distance of about 1-1/4 or 1-1/2 miles away from the place of occurrence. This witness had no business to come from Jallo Pind to the place of occurrence in order to attest the recoveries of incriminating articles. The evidence of the other recovery witness Nazeer Ahmad has already been discarded by me as mentioned earlier in the judgment. Thus, there is no independent and trustworthy evidence regarding recoveries. I, D therefore, proceed to discard the recoveries of incrimination articles. At the top of it, motive part of the prosecution story was not even relied upon by the learned trial Court. After considering the fact of established enmity between the parties, I do not find any esitation in coming to the conclusion that the appellants might have been implicated in the case on account of admitted enmity between the parties. Perhaps this is the reason that the learned trial Court observed in paragraph No,28 of the judgment as follows:-- "However, chances are that some incorrect person might have been involved along with the real culprit but there is no scope that real culprit is allowed to go and others are substituted due to old enmity."
' This unequivocally shows that even the learned trial Court had definite doubts about the participation of the appellants in the commission of the crime. Further, supplementary statement had been made by Nazeer Ahmad P.W.6, wherein it was disclosed that second shot was fired by Din Muhammad appellant which hit deceased Atta Muhammad on his back. The said statement made by the witness was a daring attempt on his part to make very substantial improvements in the case of prosecution to lend support to it. To begin with, the prosecution case was that only one fatal shot was fired by the absconder Riaz alias Billa and that nothing at the spot was done by the appellants except that of ineffective firing. The supplementary statement of Nazeer Ahmad P.W.6, was recorded definitely to fill up the lacuna in the prosecution case. In my view, the introduction of supplementary statement by the complainant at later stage had made the case of the prosecution wholly doubtful. The said supplementary statement of complainant was rightly excluded from consideration by the learned trial Court. This is not enough to say only so much about the said statement. In fact, the said statement was concocted to provide some evidence against the appellants to involve them in the case. This was a crude attempt made by the prosecution to implicate innocent people in a murder charge. This has undoubtedly, shaken the very foundations of the prosecution case. This fact itself was enough to discard the entire prosecution evidence against the appellants. This is, therefore, established beyond doubt that the witnesses did not see the occurrence at all and they were planted later in the case just to provide some evidence against the I appellants.
' The motive as set out by the prosecution does not at all advance the case of the prosecution. It can be said that the appellants might have been implicated G in the case on account of their established enmity with the deceased. Apart from the above, the medical evidence is also not in line with the ocular account. Medical evidence showed that there were two fire-arm injuries on the person of H the deceased whereas the stand of the prosecution in the F.I.R. Was that Atta Muhammad died at the spot on account of fire-arm shot made by the absconding accused Riaz alias Billa. In my view, the supplementary statement by Nazeer Ahmad P.W.6, was, therefore, fabricated in order to explain the second injury found on the person of the deceased with due deliberation by the complainant party.
14. The upshot of the above discussion is that the prosecution has failed to prove any case against the appellants. Accordingly, I proceed to set aside the conviction and sentence of the appellants and acquit them by giving them the benefit of doubt.
15. These are the detailed reasons in support of my short order dated 19-9-1989 whereby the appellants were acquitted and were set at liberty forthwith.