1. MUSHTAQ HUSSAIN, J.--Matiullah Khan, Muhammad Khan and Rifaqat been convicted under section 302134, P. P. C. By Mr. Muhammad Khurshid, Sessions Judge, Mianwali, by order dated 2-7- 1970 for the murder of Bashir Hussain at Darya Khan in the jurisdiction of P. S. Darya Khan at a distance of 1i furlongs from the same police station in the district of Mianwali at about 7-45 p.m. On 27-4-1968. Matiullah Khan and Muhammad Khan have been sentenced to death while Rifaqat A.I has been sentenced to transportation for life. By the same order, they have also been convicted under section 307/34, P. P. C. And sentenced to 4 years' R. I. Each for a murderous assault on Rahim Bakhsh (P. W. 9) at the same time and place. Ghulam Muhammad father of Matiullah Khan appellant and Khan Muhammad son of Samand Khan cousin of Muhammad Khan appellant, were acquitted by the same order. All the three convicts have appealed against their convictions and sentences and the case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death awarded to Matiullah Khan and Muhammad Khan. This order shall dispose of the appeal as well as the Murder Reference.
2. The prosecution case is that on the fateful day at about 10/11 a.m. Rifaqat A.I and the acquitted co- accused brought Kacha bricks on carts and unloaded them at an open place in front of the shop of Hussain Bakhsh (P. W. 8). The latter, Sahibzada Ahmad Jan (P. W. 10) and Bashir Hussain deceased asked them not to do so as the place was being used by them. Ghulam Muhammad accused abused Hussain Bakhsh and gave him a fist blow on his mouth and went away saying that they should stop them when they build the house.
3. The same evening at about 7-45 p.m. All the five accused came to the place of occurrence again.
4. Matiullah was armed with a rifle Exh. P.
7. Muhammad Khan with a gun and the three co-accused were empty-handed. After a lalkara Muhammad Khan fired hitting Rahim Bakhsh while Matiullah fired and injured the deceased Bashir Hussain who succumbed to his injuries in a shop a few feet away from the place of occurrence.
5. Hussain Bakhsh (P. W. 8) left for the police station and lodged F. I. R. (Exh. P.B.) at 8 p.m. Which was recorded by Ahmad Khan, Sub-Inspector (P. W. 12)
6. Having recorded the F. I. R. Ahmad Khan S. H. O. (P. W. 12) prepared the injury statement of Hussain Bakhsh (P. W. 8) and proceeded to the spot where he reached at about 8-45 p.m. He found the dead body of Bashir `Hussain deceased and prepared the injury statement (Exh. P. O.) as well as the inquest report (Exh. P. R). The body was despatched for post-mortem examination. Rahim Bakhsh P. W. Was lying at the spot injured and unconscious and he was sent to the Civil Hospital for treatment. He arrested Ghulam Muhammad the acquitted accused at about 1-30 a.m. The same night.
7. Next morning he took blood-stained earth into his possession from the spot and two electric bulbs, one from the shop of Muhammad Bakhsh p. W. And the other from the shop of Mistri Ghulam Qadir P. W. He took into possession three empties Exhs. P. 3 to P. 5 which were lying at the place of occurrence vide memo. Exh. P. P. He extricated a lead bullet Exh. p. 6 from the front wall of the shop of Hussain Bakhsh P. W. And took it into possession vide memo. Exh, P. G. On 6-5-1968 Matiullah accused appeared before hire with his licensed rifle Exh. P. 7 which was taken into possession, On 22-5-1968 Muhammad Khan accused appeared before him while on 23-5-1968 Rifaqat accused appeared before him. The accusedwere challaned with the result already indicated. Above.
8. All the accused persons denied having anything to do with the murder and claimed to be tried. The prosecution produced 12 witnesses while the defence produced none.
9. Dr. Abdul Rashid appeared as P. W.
1. His statement before the committing Magistrate was transferred to the Sessions file. He had performed the post-mortem operation on the dead body of Bashir Hussain and found the following injuries on his person:-- "(1) An oval-gunshot wound -- ' x -- " going inside the chest from left to right (wound of entry if above the left chest).
(2) A lacerated wound 2' x1' coming from inside the chest, below the right chest.
(3) An abrasion 1' x -- on the right shoulder I examined the chest. It was injured at the level of third left inter space. Seventh rib was shattered at the back. Pleurae were injured on both side. The right lung was shattered in the upper part and the left lung was shattered in the middle. Upper part of heart and atria were shattered aorta was shattered. I examined the stomach. It was 3/4th full with food made of wheat flour.
10. This statement proves that-
(1) Bashir Hussain deceased met a violent death.
(2) He died as a result of injuries caused by a bullet. The bullet was fired from a high velocity rifle;
(3) The death was instantaneous; and
(4) The deceased should have collapsed on the receipt of the injury at the place where he was hit.
11. Dr. Abdul Jabbar who had examined Rahim Bakhsh (P. W. 9) appeared as P. W.
2. He found the following injuries on the person of Rahim Bakhsh:--
(1) A gunshot wound measuring 1/8' x 1/8` x 1/8' on the front medial aspect of right upper arm situated 6 -- ' above the right elbow joint.
(2) Another gunshot wound measuring 1/8' x 1/8` x 1/8' on the medium aspect of right upper arm situate 6 -- ' above the right elbow joint.
(3) Another gunshot wound measuring 1/8' x 1/8` x 1/8' on the front medial aspect of right arm, situated 6' above the right elbow joint.
(4) Swelling measuring 2' round was present at the site of injury.
12. He also examined Hussain Bakhsh and found the following injury on his person:-
(1) A swelling measuring 1 -- ' x -- ' on the left side of upper aspect of upper lip situated J' below the left nostril.
13. The swelling was painful and tender caused by a blunt weapon and was simple in nature. His testimony proves that these two witnesses had been injured the first by gunshots and the second by a blunt weapon.
14. The recovery of the revolver is of course not of much consequence, firstly, because it is a licensed weapon and the licence is in favour of Matiullah and secondly which, of course, is the most important reason, because the empties which were recovered from the spot did not match with Exh. P. 7 as is clear from the last sentence of the statement of Ahmad Khan (P. W. 12) the Investigating Officer. There is therefore, not corroborative evidence in the shape of any recovery in the present case.
15. The eye-witnesses in this case are Hussain Bakhsh (P. W. 8) who is a Khalazad of the deceased; Rahim Bakhsh (P. W. 9) who is a brother of P. W. 8; Sahibzada Ahmad Jan (P. W. 10) who is a tenant of the P. W. 8, Mistri Ghulam Qadir (P. W. 11) who is also a tenant of P. W.
8. One Wahid Bakhsh, a paternal nephew of P. W. 8, was given up as unnecessary while Ghulam Haider a wajtakkar witness was given up as having been won over.
16. Hussain Bakhsh appeared as P. W. 8 and repeated the prosecution story. He admitted that the house of Sahibzada Ahmad Jan (P. W. 10) is at a distance of two furlongs from the spot as is the house of Ghulam Qadir (P. W. 11). He further admitted that the shops of Master Abid, the hotel of Sahibazada Ahmed Jan, the shop of Hakim A.I, the hotel of Riaz Ahmad are adjacent to the shop of P. W. I1 which adjoins the shop of the witness. This is worth-mentioning that Master Abid, Hakim A.I and Riaz Ahmad have not been produced. When questioned as to the time when all the shops in the locality are closed for the evening the witness informed the Court that it was at 6 p.m. On the particular day, however, the shops of Ghulam, Qadir Malik Ghulam Haider and that of the witness himself were kept open. He went on to say that he used to close his shop during the days of occurrence at 9/10 p.m. But that during the period within which his statement was recorded by the trial Court his closing time was about 6/7 p.m. Which was also applicable to Ghulam Qadir P. W. He also made a statement that he was now usually closing his shop at about 6/7 p.m. The reason that he gave was that he was afraid of the accused. Normally adjacent shops in the locality closed at more or less the same time. No reason has been advanced by the witness as to why he and the other person named by him was not closing the shops at the same time as others.
17. It does make one think as to why it happened like and in the absence of any special circumstances one would be disposed to believe that ail the shops closed at the same time. If that be correct then the incident must have taken place at a time when these alleged eye-witnesses were not there and the suggestion put by the defence to this witness that it was about 1/2 a.m. On the night between 27/28-4-1968 when the report was lodged at the police station after due deliberation must be correct.
18. This conclusion finds support from the statement of this witness who stated before the committing Court that the statements of Sahibzada Ahmad Jan, Rahim Bakhsh and Mistri Ghulam Qadir witnesses were recorded by the Sub-inspector on the following day. The further fact that he made a different statement before the trial Court and asserted that these persons had been examined on the night of the occurrence, adds to the strength of the version given by the defence. In fact in case of Ghulam Haider P. W. Also a similar situation was created. He was, how-- ever, not produced on the ground that he had been won over.
19. So far as the site of the incident is concerned. Hussain Bakhsh has stated that Bashir Hussain deceased and Rahim Bakhsh P. W. Were standing in front of his shop and it was there that the shots were fired by the accused. He goes on to say that Bashir Hussain and Hussain Bakhsh ran into his shop and fell down there. In the plan, point No. 3 is the place where the injuries were sustained while the point in the shop from where the blood-stained earth was recovered has been shown as No. 1 which is in no case less than eleven feet away. The evidence of the doctor as we have already seen makes it very clear that the injuries suffered by the deceased were such that he should have collapsed at the place where he was hit. When questioned as to whether, Bashir Hussain could have moved I feet from the place, the answer given by the doctor was that it was a remote possibility. But even that does not help the prosecution case. The distance is at least eleven feet away.
20. Identification of the accused by the witness is again an incredible story. According to this witness there was an electric bulb alight in the shop at the end of the chopper. This was between the witness and the accused if we were to believe this witness. The witness was inside the shop much nearer the bulb while according to the plan the place from where the shots were fired is about four feet away from the shop. It would be impossible to identify the appellants at such a distance when the electric bulb was very near the witness and intervened between him and the accused. It was a dark night and it has been clearly stated in the evidence by Mistri Ghulam Qadir (P. W. 11) that there was no moon and but for the bulb the accused could not have been identified.
21. The following facts follow as a corollary from the statement:-
(i) This witness used to close his shop at about 6 p.m. And therefore, he could not be present if the incident had taken place at 7.45 p.m.;
(ii) He did not see the occurrence because Bashir Hussain deceased died instantaneously at the spot where he was fired at. The blood-stained earth having been recovered from inside the shop he had been shot inside and not outside the shop as he would have us believe. Had he been shot outside the shop, blood-stained earth should have been found outside and not inside as blood must have gushed out of his wound which was no less than -- ' x -- ' in dimension and was going inside the chest
(iii) The F. I. R. Was not recorded at the time given out by the witness, but later in the night; and (iv)
22. The statements of all the other witnesses were recorded on the following day and not on the evening when the occurrence took place.
23. Rahim Bakhsh (P. W. 9) asserts that he saw the occurrence from a place in front of the shop of Hussain Bakhsh P. W. Where he was standing. He also asserts that Wahid Bakhsh and Hussain Bakhah P. Ws. Were standing near the body of a truck near the shop. P. W. 6 Salim Khan Patwari has said that there was no such body of any truck lying at the place. He had no business to be at the shop as he himself says. He would have us believe that he went there and just kept sitting till the time of occurrence. He heard the shots and then he became unconscious. The injuries sustained by him are not such as could have made a normal healthy person unconscious and, therefore, his plea that he became unconscious cannot be sustained.
24. No pellets were found subcutaneously. During his cross-examination Dr. Abdul Jabbar Khan (P. W.
25. 2) categorically stated that the wounds such as were suffered by Rahim Bakhsh P. W. 9 can be caused by any pointed instrument" but he went on to say that it would not be correct to say that the injuries were not caused by a firearm. Be that as it may, it is impossible to hold that this witness was either present at the spot when the incident took place or that the narrative given by him before the Court has any ring of truth about it. Learned counsel for the appellants rightly pointed out that Rahim Bakhsh (P. W. 9) was nothing more than a wajtakkar witness in the sense that he himself admitted that he had no particular business to be at the shop and that he reached the shop at about 7 P.M. In other words, he had gone there just to witness the occurrence. We, have, therefore, no hesitation in placing no reliance upon the testimony of this P. W.
26. Sahibzada Ahmad Jan appeared as P. W.
10. He is a tenant of the complainant party. This witness did not see the shots from any of the weapons said to be in the hands of the convicts hit any one of the complainant party. He just heard the lalkara and he says that he peeped out of his window and found that the appellants were standing at a distance of about 45 feet and be had identified them.
27. We have already seen that it was not a moonlit night and that there was no street lights on. He wants us to believe that he identified the appellants at a distance of about 45 feet in the light of an electric bulb which was hanging outside his chaubara. No such bulb was either pointed out to the Investigating officer nor was it ever taken into possession. It even does not find any mention in the statements of other witnesses. It is, therefore, not possible to accept this version given by him.
28. There is no other circumstances worthy of note. He has stated that at the time when the occurrence took place, the appellants were standing with their backs towards him. He has also stated that when he came down they made good their escape and that he had identified them before he came down. This is incredible and just not possible to identify the appellants when they were standing with their backs towards him. He has improved upon his position in the trial Court with regard to having identified the appellants in the light emitted by the bulbs hanging in the shops of Hussain Shah and Ghulam Qadir. He never said so before the police. He would also have us believe that police reached the spot at about 9 p.m. We have already held otherwise. He has admitted being a gambler and, in fact, he has been convicted twice on the score. He is carrying on business in partnership with one Saifullah who is serving six years' sentence under section 377, P. P.
29. C.
30. This witness does not inspire any confidence and we would, therefore, not believe his story.
31. Ghulam Qadir appeared as P. W.
11. He is also a tenant of Hussain Bakhsh. He claims to be repairing the taxi of Bashir deceased as there was some impediment in the flow of petrol. According to him, be saw everything happened, shots were fired, lalkaras were given, but this was remained unperturbed and did just nothing. One would expect. People present at the spot where firing is taking place to run helter and skelter and take shelter. He did nothing of that sort and remained at the spot. He had stated before the M. That he bad checked up the taxi at that time and that he had found no defect in it. When he was confronted with the statement before the trial Court, he denied having said so: This was necessitated by the fact that he had made the statement before the Court that he did not check up the taxi on the night of the occurrence and bad instead looked into it on the following day when he found certain nuts loose which he had tightened up. Even the reason for the taxi having been handed over to him for repairs was never stated before the police or the committing Court. When asked about it he stated before the trial Court that he had informed the committing Court that the taxi had been brought to him because of the defects stated above. He was confronted with his statement earlier, but no mention of this was found there. He stated before the police that the reason for his presence at the spot was that he was as usual cleaning and checking up the taxi. Before the trial Court he made a bald statement that it was not his duty to check up the taxi nor was he supposed to clean it. He did not even mention before the committing Court that electric bulbs were alight in his shop and at the shop of Hussain Bakhsh. It is hardly possible to accept this statement of this witness as correct and we therefore, reject it out of hand.
32. The narrative and analysis of the testimony of alleged eye-witnesses given above leave no manner of doubt in our minds that none of them had witnessed the occurrence and that they are not witnesses of truth There is no corroborative evidence forthcoming at all. We have no option C therefore, but to accept the appeal and set aside the order of convictions and sentence of the appellants which we hereby do. We decline to confirm the death sentence. By a short order, we have already directed that these persons shall be released if they are not wanted in any other case.