RAJA AFRASIAB KHAN, J.--- Abbas (35), Mumtaz (30), Taj (32) sons of Muhammad Yar, Said (60/65), Ghulam (55) sons of Daim, Nausher (40) and Kameer (25) sons of Faiz were tried by Mian Ghulam Ahmad learned Sessions Judge, Kasur under section 302/109/148/149, P.P.C. For the murder of Abbas (40) son of Said and Shahabal (701 son of Ibraheem. By judgment dated 17-6-1986 the learned trial Judge convicted Abbas accused under section 302/149, P.P.C. And sentenced him to death plus a fine of Rs.10,000 which was ordered to be recoverable, in case, the death sentence was altered to some lesser sentence. Taj, Said, Nausher and Kameer accused were convicted under section 302/149, P.P.C. And sentenced to life imprisonment plus a fine of Rs.10,000 each or in default thereof to suffer further R.I. For a period of two years. In case of recovery of fine; Rs.40,000 were ordered to be paid as compensation to the legal heirs of the deceased in the ratio of fifty fifty.
All the appellants were also convicted under section 148, P.P.C. And sentenced to suffer two years'
R.I. Each for having formed an unlawful assembly. However, it was directed that both the sentences of imprisonment shall run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants. Mumtaz son of Muhammad Yar and Ghulam son of Daim accused were acquitted by the learned trial Judge.
The appellants have filed joint Criminal Appeal No.401 of 1986 challenging their conviction and sentence. The learned trial Judge has sent a reference under section 374, Cr.P.C. (Murder Reference No.169 of 1986) for confirmation of death sentence of Abbas. The complainant Khushi Muhammad has filed Criminal Revision No.475 of 1986 for enhancement of the sentences of the appellants Taj, Said, Nausher and Kamir, to death and also for convicting and sentencing the acquitted accused according to law. The above matters arise out of impugned judgment and as such we propose to decide them by this judgment.
2. The prosecution story is that on 18-9-1985 at about Chhahwela in Chak No.20 Police Station Pattoki, District Kasur, complainant, his father Shahabal (deceased) and cousin Abbas (deceased) were cutting fodder in their fields. Sabir Hussain son of Ali Muhammad (P.W.7) Manzoor son of Sanatta (given-up), Manzoor son of Malla (given-up) and Wali Muhammad son of Sanatta (P.W.8) were working in their fields. Abbas, Taj; Mumtaz, Ghulam, Said, Nausher and Kameer armed with fire-arms emerged from a Churri crop. Abbas shouted that he had come to avenge the murder of his father and fired from his rifle which hit Abbas son of Said on his chest. On receipt of the injury, he fell down. Taj, Mumtaz and Ghulam also fired one shot each from their guns which hit Abbas and he died on the spot. The complainant concealed himself in a nearby millet field. The accused then turned towards Shahabal who in order to save his life ran towards the Dahri of Ameer son of Sanatta and took shelter therein. The accused, however, chased him and entered into the Dhari.
Mumtaz fired at him on the right side of his chest. In an injured condition, Shahabal was dragged out of the Dhari. Thereafter, Said, Ghulam Nausher, Abbas and Kameer fired one shot each from their respective weapons at Shahabal and he too died on the spot. The first occurrence,, was witnessed by Khushi Muhammad P.W.6, Sabir Hussain P.W.7 and Manzoor Ahmad (riot produced) while the second occurrence was seen by Manzoor son of Malla (given up) and Wali Muhammad son of Masta (P.W.8).
The motive set up by the prosecution was that about two years before the present occurrence, Muhammad Yar father of Abbas appellant was murdered. Shahbaz son of Abbas deceased and brother of Sabir 'Hussain P.W.7 were challaned in that case. In order to avenge that murder, the appellants and their companions murdered Abbas and Shahabal deceased.
3. Mehmood-ul-Hassan S.I. (P.W.15) was present in the chowk of Pattoki at Multan Road on 18-9- 1985 at 10-30 a.m., where he met Khushi Muhammad, complainant, and recorded his statement (Exh. P.F), and sent it to Police Station Pattoki for registration of the case through Sabir Ali, F.C.
(given-up). The Police Officer went to the spot and prepared inquest reports of the deceased Exhs.
P.P and P.O. Similarly, injury statements of the deceased Exh. P.S. And Exh.P.S./1 were prepared. He secured blood-stained earth from near the dead body of Abbas vide memo Ex. P.G. And collected four empty cartridges P12-15 vide recovery memo Exh. PJ. He took into possession blood-stained earth from near the dead body of Shahabal vide memo Exh. P.H. He collected six empty cartridges P16-21 vide recovery memo Exh. P.I. Site plans Exh P.K. And Exh.P.K/1 were got prepared by the Sub Inspector from Muhammad Iqbal Patwari P.W.11. The dead bodies were sent for autopsy through Ijaz and Sabir F.C s. In cross-examination it was conceded by the witness that he was demoted from the rank of Sub-Inspector to Head-Constable after the present occurrence. He disclosed that there was no crop standing in the. Fields of Abbas deceased. According to him, there is a distance of about between the millet field and the other field where Shahabal was done to death.
Remaining investigation was conducted by Ijaz,, Ahmad Inspector (P.W.13). He visited the spot on 18-9-1985 at about 3-00 p.m. On 19-9-1985, last worn clothes of Abbas deceased P.5 and P.6 were handed over to him by Ijaz Constable. These articles were taken into possession vide memo Exh.
P.E. Similarly, last worn clothes of Shahabal deceased Kurta P.1, Chadar P.2, Safa P.3 and a phial P.4 were taken into possession vide memo Exh. P.F. Abbas, Taj, Said, Nausher and Kameer appellants were arrested on 28-9-1985. Abbas led to the recovery of rifle P.7 alongwith its licence which was taken into possession vide memo Exh.P.K. A .12 bore gun P.8 was recovered from the haveli of Abbas at the instance of Kameer. It was taken into possession vide recovery memo Exh. P.L. Nausher led to the recovery of a .12 bore gun P.9 from the aforesaid haveli which was taken into possession vide memo Exh. P.M. Taj led to the recovery of a .12 bore gun P.10 from his house which was taken into possession vide memo Exh. P.N. Similarly, Said led to the recovery of a .12 bore gun P.11 from his Kotha, which was taken into possession vide memo Exh. P.O. On 5-10-1985 Mumtaz and Ghulam acquitted co-accused were arrested from Nankana Sahib where they were brought under arrest for their production before the learned Assistant Commissioner in cases registered against them under the Arms Ordinance, 1965. The investigating officer in his cross-examination expressed his inability to specify the place in the haveli wherefrom the weapons were recovered. He conceded that no person from the place of recovery was asked to witness the recovery except Faiak Sher and Mansab P.Ws. Report of the Chemical Examiner Exh P.T., Serologist Exh P.V and that of Forensic Science Laboratory Exh. P.U. Were tendered in evidence.
4. Dr. Muhammad Rafi P.W.1 conducted the post-mortem examination upon the dead body of Shahabal on 19-9-1985 at 6-30 a.m., and found the following injuries thereon: (1)Fire-arm wound, oval in shape, 2.5 c.m. x 2 c.m. With 10 pellets wounds on the front of right chest, on the inner side of right nipple, as shown in the diagram.
(2)Pellet wounds 7 in number, 0.3 c.m. x 0.2 c.m. Each on the back of the right side, 5 c.m. Below the scapula.
(3)Pellet wound on the back of the chest, left side below the scapula.
(4)Fire-arm wound on the tip of right thumb; underlying bone shattered.
(5)Abrasion 3 c.m. x 1 c.m. On the right cheek.
On the same day at 7-30 a.m. The same Doctor conducted the post---mortem examination on the dead body of Abbas and found the following injuries on it: (1)Fire-arm wound, on the left side of the chest, above the left clavicle, 3.5c.m. x 2.5 c.m., oval in shape, with tattooing around the wound.
(2)Fire-arm wound 3.5 c.m. x 4.2 c.m., oval in shape, directed into the chest, towards the left side, placed on the right side of the chest, near the right nipple. No tattooing seen in this area.
(3)Fire-arm wound 4 c.m. x 4 c.m. With tattooing around the injury on the outer side of right arm in the middle underlying bone fracture.
(4)Fire-arm wound 4.5 c.m. x 5 c.m. On the inner side of right fore-arm at the same level as that of injury No.3. This was an exit wound for injury No.3.
(5)Six pellet wounds on the outer side of left upper arm, in the middle. Underlying bone fracture.
(6)Six pellet wounds on the inner side of left upper arm, in the middle. This was exit wound for injury No.5.
(7)Fire-arm wound, oval in shape, 1.5 c.m. x 2.5 c.m. On the back of chest, left side, below the scapula.
(8)Six pellet wounds on the left chest, in front, below the left nipple.
5. Eye-witness account was given by Khushi Muhammad (P.W.6), Sabir Hussain (P.W.7) and Wali Muhammad (P.W.8) The accused while making statements under section 342, Cr.P.C. Denied the allegations levelled against them and pleaded that they were innocent. They took the plea that they had been implicated in the case on account of enmity. No evidence in defence was, however, led by the appellants.
6. The learned trial Judge believed the evidence deposed by Khushi Muhammad (P.W.6) and Sabir Hussain (P.W.7), recovery of weapons, medical evidence and motive, to convict and sentence the appellants, as mentioned above.
7. Mr. S.M. Zafar eloquently argued that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. He submits that the prosecution evidence is interested, partial and that there is no corroboration of the evidence of the eye-witnesses. Learned counsel urges that the evidence regarding the recovery of weapons of offence and motive was never put to the accused while they made statements under section 342, Cr.P.C. The learned counsel says that the evidence regarding recovery and motive, therefore, cannot be used against the accused under the law. It is contended that the registration of the F.I.R. Is also doubtful inasmuch as the case was registered against the accused after due deliberation and consultation. He maintains that it is established that the investigation of the case was not above-board. Mr. R.A. Awan also attacked the prosecution evidence by contending that there was no bullet injury having been found on the dead bodies of Abbas and Shahabal and that being so, possibility of false implication of the appellants in the case cannot be ruled out in view of the enmity already existing between the parties. Mr. S.D. Qureshi, learned State counsel was unable to substantially rebut the weighty arguments addressed by the learned counsel for the appellants. No one has appeared on behalf of the complainant in, support of the revision petition fled by Khushi Muhammad, complainant.
8. We have heard the learned counsel for the parties at considerable length and have gone through the record with utmost care. At the very out-set, it may be observed that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. The witnesses produced by the prosecution are related, partial and interested. Khushi Muhammad (P.W.6) is son of Shahabal (deceased). Sabir Hussain (P.W.7) is cousin of Khushi Muhammad.
Similarly, Wali Muhammad (P.W.8) is from the brotherhood of the complainant. He says that Ilyas is his brother and that Mst. Jannat, his were, is the cousin of Abbas (deceased). From the above, it is clear that all the witnesses are closely related inter se. Manzoor son of Sanatta and Manzoor son of Malla were mentioned as eye-witnesses but were not produced by the prosecution during trial for the reasons best known to it. The presumption in law, therefore, is that in case the witnesses were produced, they would have deposed against the prosecution. There is absolutely no independent circumstance to corroborate the eye-witness account given by Khushi Muhammad, Sabir Hussain and Wali Muhammad P.Ws. Evidence of Wali Muhammad (P.W.8) was not relied upon by the learned trial Judge for good reasons. We are not persuaded to believe that Khushi Muhammad and Sabir P.Ws. Were present at the spot. In case they had been present, we are of the view that they would not have been spared by the accused who were heavily armed as per the prosecution case. Khushi Muhammad (P.W.6) deposed that he and his father Shahabal and Abbas were cutting fodder together in their fields when all the accused armed with rifle and .12 bore guns reached the spot and opened attack upon them. To the same effect is the statement made by Sabir Hussain P.W.7. This witness states that he was working in the field alongwith Manzoor at the time of occurrence. He further stated that he alongwith Manzoor also ran after the assailants when they were chasing Shahabal (deceased) to kill him. His evidence, that he ran after the heavily armed accused and that he was not touched by them, seems to be highly improbable in the circumstances. His evidence does not inspire confidence. The prosecution case itself is that the complainant party belongs to Kharal tribe whereas the accused are Bhattis. The deep rooted enmity between the two tribes has been highlighted by the complainant himself in his lengthy statement. He has categorically stated that the Kharals are on one side and Bhattis are on the other and that both the tribes are involved in criminal litigation including murder cases for the last about 14/15 years. It was deposed that the two tribes were not on visiting terms and did not participate in each other's functions of marriages and deaths. According to him the enmity between the parties was so deep-rooted that the people of his tribe used to avoid katcha path passing by the side of the house of Abbas deceased for going from village to their fields. We are, therefore, of the view that P.W.6 and P.W.7 did not witness the occurrence and that Abbas and Shahabal deceased,, were done to death by some unknown assailants. Since the parties were inimical to each other the possibility cannot be ruled out that the appellants were falsely involved.
The P.Ws. Did not even spare Mumtaz and Ghulam and tried to involve them in the case despite the fact that they were confined in District Jail, Sheikhupura in cases under Arms Ordinance. The P.Ws.
Attributed to them direct role in the occurrence. According to them first of all Mumtaz opened the attack and fatally injured Shahabal by firing a shot in his chest. Similarly, Ghulam was alleged to have fired at Abbas deceased. This being so, the eye-witnesses cannot be believed against the other accused without any independent corroboration. We are, therefore, constrained to reject the prosecution evidence in its entirety against all the accused.
The recovery of weapons from the appellants, again, cannot be used against them because the fact of recovery was never put to the accused when they were examined under section 342, Cr.P.C.
The evidence regarding enmity existing between the parties was also not put to the appellants. The above omission, in law has seriously prejudiced the case of the defence. The case of the prosecution is that Abbas was armed with a rifle with which he fired at the chest of Abbas (deceased). The medical evidence shows that there was no rifle injury on Abbas deceased. Thus, the medical evidence runs counter to the eye-witness account. According to the Investigating Officer, he recovered four empty cartridges from near the dead body of Abbas deceased and six empty cartridges from near the dead body of Shahabal but this fact is not mentioned in the inquest reports Exh. P.P. And Exh. P.Q. Apart from the above,. The recovery witness, namely, Falak Sher was not produced in Court. Even otherwise, the requirements of section 103, Cr.P.C. Were not complied with. There was a direct allegation against the F Investigating Officer that he had planted the guns in the case in order to provide corroboration to the case of the prosecution. The said Investigating Officer conceded that he was demoted from the rank of the Sub-Inspector to Head Constable after the occurrence in hand. Mansha P.W.12, the recovery witness is not a resident of the village from where the recoveries were effected. His village is 4/5 miles away from the place of occurrence. According to him 12/15 people were present at the time of recovery. It is not understandable as to why no ~ witnesses from the locality were made to join the investigation. This circumstance casts a doubt on the recoveries.
9. For the foregoing reasons, we conclude that the prosecution has failed to prove its case against the appellants beyond all reasonable doubt. We, therefore, set aside their conviction and sentence and acquit them. The appeal succeeds and is allowed. The appellants who are in custody shall be set at liberty if not involved in any other case while those on bail are discharged from the bail bonds. The Murder Reference is answered in the negative.
10. In view of the acceptance of the appeal, the revision automatically fails, and is dismissed accordingly.