MUSHTAQ HUSSAIN, J.- Muhammad Anwar, aged 50 years, a shop--keeper of village Bokrra, has been convicted under section 302 of the Pakistan Penal Code for the murder of Khan Mohammad Rajput on 15th January 1969 in Dhok Subhani and sentenced to death by the learned Additional Sessions Judge, Rawalpindi, by leis order dated 2nd February 1970. By the same order he was also convicted under section 307, P. P. C. For murderous assault on Mohammad Fazal (P. W. 15), Liaqat Hussain (C. W. 1) (son of Fazal) and. Liaqat (son of Fida Hussain) another eye-witness who was not produced and was given up. He has filed an appeal against his conviction and sentence and the case is also before us for confirmation of the death sentence under section 374 of the Cr. P. C.
2. The prosecution story as unfolded in the F. I. R. (Exh. P. H.) on the statement of Amir Zaman (P. W.
14) which form the basis of formal first information report (Exh. P. H/1) is as follows:- The daughter of the appellant Mat. Arshad Begum was married 7/8 years before the incident to Mohammad Akram (P. W. 19). Two off-springs were the result of this marriage. Two years before the incident \Mat. Arshad Begum bad returned to the house of her father, the appellant, because of domestic quarrels. Mohammad Akram had given a notice of divorce and the matter was pending before the Union Council. On the 15th January, 1969, at peshiwela Mohammad Akram took away his young son aged 4/5 years from the house of his father-in-law, the appellant, in his absence. The appellant repaired to the house of the complainant Amir Zaman and asked for his intercession in restoring the child to him. Consequently the appellant along with Khan Mohammad son of Miran Bakhsh, MohammadAkbar son of Ghulam Haider and Mohammad Zaman son of Karam Elahi went to the house of Mohammad Akram deceased. They found Mohammad Akram and his father Fazal Khan present in their house and they all sat down in their kotha and demanded the return of the boy. Mohammad Akram showed his willingness to do so on the condition that he would be allowed to meet his son. The complainant came out and informed Mohammad Anwar about it.
Mohammad Anwar insisted on taking the boy back that very day and he walked into the courtyard of Mohammad Akram's house and took his stand in the doorway of the kotha referred to above in which his companions were sitting. He took out a hand-grenade from his right dab and threw it in the kotha. It burst and there was an explosion. Mohammad Anwar ran away. When the complainant went into the kotha, he found that his companion Khan Mohammad had been badly injured by the splinters of the grenade and was lying unconscious. Fazal Khan had also been similarly injured. The complainant and others carried Khan Mohammad to the Civil Hospital, Rawalpindi and he was admitted there at about 11 p.m. He was given first-aid but he gave up his struggle for life within one hour.
3. The doctor sent information of the death to the Police Station A-Division and Muhammad Ashraf (P. W. 16) who was then Assistant Sub-Inspector of the Police Post went to the hospital. He recorded the statement of Amir Zaman (P. W. 14) which is Exh. P. H. And sent it to Police Station Jatli for registration of the case. Formal F. I. R. (Exh. P. H/1) was registered at Police Station Jatli at 5 a.m. On- 16th January 1969 by Ghulam Sarwar, Sub-Inspector.
4. Meanwhile Mohammad Ashraf (P. W. 16) prepared the injury statement (Exh. P. R.), the inquest report (Exh. P. S.) and sent the dead body of Khan Mohammad to the mortuary for post-mortem.
5. The investigation was taken up by Ghulam Sarwar (P. W. 22) Sub-Inspector, S. H. O. Police Station Jatli. He went to the spot reaching at 8-30 a.m collected blood-stained earth and made it into the sealed parcel and also took into possession 15 pieces of hand grenade, 2 flying leavers and 1 spring which was made into sealed parcels and taken into possession vide memo. Exh. P. K. He also took into possession a live hand grenade from the room which was ultimately exploded at his instance by Capt. Mahmood Khan on 18th January 1969 and 37 pieces from it were taken into possession by him vide memo. Exh. P. H. He despatched all the pieces of hand grenades and a phial received by him from the doctor to the Inspector of Explosives, Rawalpindi.
6. The case was challaned with the result already indicated.
7. At the trial, the prosecution produced 22 witnesses. The appellant denied the charge and pleaded innocence. He stated that Khan Mohammad deceased had many enemies and someone killed him and the appellant had been falsely involved due to enmities with the P. Ws. Particularly Amir Zaman (P. W. 14). He declined to lead any defence.
8. Dr. Zafar Iqbal Bhutta (P. W. 1) performed the autopsy on the dead body of Khan Mohammad and found the following injuries on it.
(1) A lacerated wound 2' x -- ' x muscle deep with blackened tissues and ragged margins on outer side of left thigh 5' above knee.
(2) Two lacerated wounds on upper back of left thigh side by side 1' x -- ' and 1 --' x -- ' (Entry and exit wounds) with blackening and ragged tissues and margins.
(3) A lacerated wound 1' x -- x muscle deep on outer middle of left leg with blackened and ragged margins (entry).
(4) Two lacerated wounds 1' x -- and -- ' x -- ' on dorsum of left foot near outer edge, one behind the other with blackened and ragged margins.
(5) A lacerated wound 2' x -- " muscle deep on heel of left foot with blackened and ragged tissues and margins.
(6) Multiple lacerated wounds of different sizes all muscle deep on right foot and right leg with blackened and ragged tissues.
(7) Multiple small wounds with blackened and ragged margins on right knee.
(8) A lacerated wound -- ' x -- ' x muscle deep on right thigh inner side of lower part withblackened margins and tissues (entry, wounds).
(9) A lacerated wound 1' x -- ' x muscle deep on right thigh backside of lower part with blackened margins and tissues (exit wound).
(10) A lacerated wound 1 -- x 1' x opening into the abdomen with blackened margins and ragged tissues, in it blood sticking to the part and intestines were visible through the wound.
(11) A lacerated wound 1'x 1' x muscle deep on left wrist outside with blackened margins and tissues (entry wound).
9. Amir Zaman (P. W. 14) appeared as an eye-witness and repeated the story already narrated by him in his statement to the police which has been given in detail above. He, however, made certain improvements in his statement which are very substantial in nature. While in the F. I. R, he had stated that the appellant took out one hand grenade from his right dab and hurled it into the room and that it had exploded, in his statement before the Court he said that Mohammad Anwar took out two grenades from his pocket and threw them in the room.' The first did not explode but the second did. Anwar then, of course, ran away. Two more persons, I.e. Liaqat son of Fazal and Liaquat son of Fida Hussain whose presence in the room has not been mentioned in the F. I. R. Were now mentioned in: the statement. Dr. Mohammad Aslam (P. W. 1) examined both these Liaqats on the 17th, January 1969 at .1-30 p.m. And found the following injuries on their person:- Liaqat son of Fazal
(1) A pellet wound -- ' x -- on back of left thumb near its base.
(2) A pellet wound -- " x -- " x communicating with injury No. 1 on inner aspect of base of left thumb.
Metacarpal phalangeal joint is swollen and immobile.
Liaqat son of Fida
(1) Pellet wound -- " x -- " on right side of chest 2 -- above nipple and slightly towards the shoulder.
The shirt had a corresponding tear.
(2) An abrasion -- " x -- " on right side of fore-arm. In his cross-examination, he admitted that the injuries caused to Liaqat A.I were by pellets and that if a hand grenade does not contain pellets then he must have been subject to fire through a shot-gun. It is, therefore, clear that these two persons, i.e. Liaqat Hussain and Liaqat A.I, were, according to the prosecution, present at the time of the occurrence in the room where the hand grenades are said to have been thrown by the appellant and that they were injured while they were in the room.
10. P. W. 14 went on to say that Akbar and Amir Zaman though they were in that very room were not injured. This Amir Zaman is a Lambardar and has been appearing as a witness for the police as is clear from the statement in cross-examination. He admitted that his daughter bad been murdered and his son-in-law had been challaned in that case, but he declined to admit that Anwar appellant was mentioned as a defence witness by his son-in-law or that Anwar was prosecuting that case on behalf of the accused. He bad, however, to be confronted with the statement before the Inquiry Magistrate where he had stated that if Mohd. Anwar was coming and attending the Courts during the trial of Mohd. Amin, i.e., his son-in-law from his side, he had no objection to his having done so. He admitted that Channoo Khan was his sister's husband and that one Mst. Siftan prosecuted them. He, however, forgot whether his sister's daughter was also accused in the case and Anwar appellant was a witness in that case against his brother-in-law. He did admit that his wife Mst. Raj Begum is a cousin of Mst. Rehmat Bibi wife of Mohammad Akbar (P. W. 20).
11. Another significant departure from the F. I. R. Is that while in it the time had been given as peshiwela in his statement Amir Zaman converted it into degarwela. His cross-examination bristles with incorrect statements which led in every case to confrontation with his statement before the committing Magistrate which invariably showed that he was resiling from that statement. He had to admit that a pocket is different from a dab, but he insisted that both .The hand grenades had been taken out by the appellant from his right pocket as against mention of only one hand grenade and its being taken out from the right dab in the F. I. R.
12. He admitted that there were five cots in the room where the occurrence took place. While entering the room one was on the left side of the door and the other was on the right side while two were opposite the door and one was near the wall towards the right side of the door. The material discrepancies some of which have been pointed out above do not permit us to believe the statement of Amir Zaman.
13. Mohammad Fazal son of Abdullah appeared as P. W. 15 who substantially supported the statement made by his predecessor. In the cross---examination, he admitted that he had filed a suit for the recovery of money against Anwar appellant and 'got a decree which was still unsatisfied. He also admitted that his sister Shah Begum had been abducted by Anwar appellant and his brothers and though they were prosecuted but were acquitted. He is the father of Akram (P.
W. 19) and Liaqat who appeared before the committing Magistrate as P. W. In the case who was given up by the prosecution before the trial Court. He also admitted that his son had divorced the daughter of the appellant and that the witness had a grouse against the appellant.
14. Havaldar Mohammad Akram (P. W. 19) substantially supported the testimony of P. W.
14. He admitted that he was the son-in-law of the appellant and had two daughters from Mst. Arshad Begum. He, however, stated that site was a lady of loose character and that he had divorced her before the occurrence in the year 1968. He also admitted that litigation remained pending before the Union Council regarding their dispute for some time. In his cross-examination, he admitted that he had participated in the Indo-Pakistan War in 1965.
15. He was followed by P. W. 20 Mohammad Akbar who also supported the statement of P. W.
14. In his cross-examination, he admitted that his wife is the cousin of the wife of P. W. 14 and that the deceased did not belong to his brotherhood.
16. Liaqat Hussain son of Mohammad Fazal (P. W. 15) was called by the Court and gave a statement as C. W.
1. He is the son of Fazal (P. W. 16) and a brother of Akram (P. W. 19). He stated that he and Liaqat son of Fida were playing outside their house at Isha time. Liaqat came to his house and at that time Jamadar Khan Mohammad deceased and the father of the witness Fazal were sitting inside the room. None else was present. He and the other Liaqat also sat inside the room. After a short-- while something hard as stone fell down in the room followed by another. The latter exploded. Simultaneously, there were reports of gun-shots. C. W.
1. Liaqat son of Fida, Mohammad Fazal (P. W. 15) and Khan Mohammad deceased were injured. A short-while after the incident, Amir Zaman Lambardar came there and the other members of the family also congregated. Amir Zaman P. W. Suggested that Anwar was their enemy and might have done this mischief. C. W. 1 categorically stated that he did not see Anwar appellant at the time of occurrence. This witness had been turned out by his father from his house because he was not supporting them in this case.
17. He stated in his cross-examination that although Anwar appellant was 'his maternal uncle he considers him as a part of his family. He was residing with Mst. Shah Begum who was not related to Anwar accused. Khan Mohammad deceased was not related to him. He also admitted that as a result of explosion of the band grenade, the room was full with smoke and nothing was visible for about seven minutes and it was during this period that the guns were fired. He also stated that Amir Zaman, Mohammad Akram and Mohammad Akbar. P. Ws. Reached the place long after the occurrence while Mohammad Zaman P. W. Was, not present even in the village and bad gone to Rawalpindi at that time.
18. Capt. Mahmood Shah appeared as P. W.
21. He is Ammunition Technical Officer. He described the hand grenade as No. 36-M. Of course, he was referring to the live grenade which he detonated.
He submitted-his report on the technical data vide Exh. P. D.
19. In Exh. P. D. This witness has given the technical data as under:-
(a) Grenades Hand No. 36-M, High Explosive with Igniter Sets assembly-service pattern.
(b) Both the Grenades and Igniter Sets assemblies were live and serviceable. These will prove fatal in case of detonation.
20. Exh. P. X/1 is the report of the Inspector of Explosives, Rawalpindi Circle which is to the following effect:- "This is certified that the Exhibits in the sealed bottle and in the container received in this office are the splinters of exploded hand grenade of 36-M. M. K. I. Type. No. 36-M. M. K. I. Z. A, P, p, F. Is marked on the base plug of the exploded hand grenade."
21. The following salient features appear from the facts given above:-
(1) While in the F. I. R. The throwing of only one hand grenade is mentioned, in the statement before the Court it has been converted into two hand grenades. While in the F. I. R. It came out of the dab in the statement they came out of the pocket.
(2) It passes one's comprehension why Mohammad Anwar appellant threw the hand grenade in a room in which most of the persons were his companions who came with him at his request to intercede for the return of his son. The plan shows that the room was about 15' x 25' in size and there were live cots lying in it. The inured persons and the deceased are said to be sitting on the cots.
Pamphlet No. G. S. P/U-10051 entitled "Infantry Training" Vol. 1, Pamphlet No. 7 dealing with grenades issued in 1961 under the signatures of Maj-Gen. Mohammad Yahya Khan, Chief of the General Staff, gives the details of hand grenades. It deals with grenades of No. 36 type on page 5 at No. 7. It stated that people within radius of 20 yards would either be killed or injured when this grenade explodes. It further shows that if the grenade explodes on hard earth this circumference would be widened to 250 yards. The hand grenades were products of the Pakistan Ordnance Factory as they bore the inscription P. O. F. On the base plug (Exh. P. X/1). The effect therefore should conform to that given in the Infantry Training pamphlet. Mohammad Anwar was standing at the doorway when he threw the grenade. He is said to have thrown one grenade which did not explode and it is then that he threw the second one. This means that he wanted to observe the result beforerunning away. He should also have been injured as a result of the explosion.
(3) There are no injuries on the person of Havaldar Mohammad Akram (P. W. 19) and Mohammad Akbar (P. W. 20). They are supposed to have been in the room and to be eye-witnesses if they were there. It is impossible to believe that they were present there as they have not received any injury whatsoever although they were within the very effective range of the hand grenade.
(4) Amir Zaman has an axe to grind against the appellant for he has been arrayed on the opposite side m litigation including murders. It is difficult to believe Amir Zaman even otherwise because of the highly discrepant statement that he has made before the trial Court.
(5) Mohammad Fazal (P. W. .15) admits that he has a grouse against the appellant. Moreover, his sister Mst. Shah Begum had been abducted by Anwar appellant and his brothers and they were prosecuted but were acquitted At least this is what P. W. 15 himself says. It would, therefore, be highly dangerous to base any conviction on his statement unless there was positive and credible corroboration forthcoming.
(6) Havaldar Mohammad Akram (P. W. 19) is the former husband of the appellant's daughter who divorced her 12 months before the incident. This may itself be enough to discard his statement.
Although he was stated to be in the room when the explosion took place but he received no injury.
His statement also contains a lot of discrepancies.
(7) P. W. 20 Mohammad Akbar apart from the fact that; he is husband of a cousin of Amir Zaman's wife also received no injury while he was in the same room. His presence has, therefore, to excluded.
(8) The names of the boys who were injured, i.e. The two Liaqats were not mentioned in the F. I.
R.This casts a serious doubt on the whole case.
22. These are some of the features of the case which make the story itself highly improbable and damaged the credibility of the witnesses who have appeared on behalf of the prosecution. The statement of Liaqat (C. W. 1) demolishes the whole prosecution case and supports the theory advanced by the appellant.
23. In these circumstances we find no justification for the conviction of the appellant which we hereby set aside by accepting the appeal and setting aside his conviction and sentence under sections 302 as well as 307, P. P. C. The sentence of death is not confirmed. We have already directed by a short order that he shall be released if he is not wanted in any other case.