The present appeal is directed against the judgment dated 24-9-1988, passed by Talib Hussain Baloch, Additional Sessions Judge, Gujranwala, whereby he convicted the appellants under section 302/34, P.P.C. And sentenced them to life imprisonment each with a fine of Rs.20,000 each or in default thereof to two years' R.I. And further directed that the fine if recovered was to be paid to the legal heirs of the deceased. The appellants were also awarded the benefit of section 382-B, Cr.P.C.
By the same judgment, the trial Court was pleased to acquit the co---accused of the appellants, namely Ghulam Rasul and Muhammad Mansha, holding that the case against the said co- accused was not proved by the prosecution beyond doubt.
2. The appellants, alongwith their acquitted co-accused, were tried by the learned Additional Sessions Judge, Gujranwala, as stated above under section 302, P.P.C. Read with section 34, P.P.C.
On the allegation that on 6-9-1986 at 6-15 a.m. In the area of Chak Hinda, Police Station Sadar Kamoke; District Gujranwala, in furtherance of their common intention, while armed with fire-- arms, they had killed Muhammad Siddique.
3. Briefly the prosecution story is that at the eventful time the deceased alongwith Bashir Ahmed P.W. And the complainant were going to their houses after coming out of the house of Abdullah.
When they reached near the mosque of the village, Irshad alias Shadu armed with .12 bore gun, Sarnawaz alias Nanna armed with carbine, Muhammad Mansha armed with rifle 7 m.m. And Ghulam Rasul armed with .12 bore gun came in front of them. Ghulam Rasul raised Lalkara whereupon Irshad alias Shadu fired and hit Muhammad Siddique on the chest, as a result of which he fell down. Sarnawaz alias Nanna fired and thus caused injury on the left hand and the upper aim of Muhammad Siddique. Irshad accused again fired and hit the right upper arm and the right flank of Muhammad Siddique. Then all the accused persons fired indiscriminately on Muhammad Siddique who expired at the spot.
The motive is stated to be that Sarnawaz alias Nanna and Mansha accused were engaged in cultivation at the Dera of Ghulam Rasul and that they alongwith Irshad alias Shadu and Ghulam Rasul used to loaf around in the village. They were forbidden by the deceased from loafing in the village; and that at one time Sarwar son of the deceased was given fist blows by the aforesaid accused persons and the deceased had reprimanded them. Therefore, the accused persons nursed a grudge against the deceased Muhammad Siddique and by way laying him, managed to kill Muhammad Siddique deceased. The complainant got registered this criminal case at police station on 6-9-1988 vide F.I.R. Exh. P.H. Bashir abovementioned and Safdar Ali, Abdullah and Saber son of Abdul Hamid had been cited as eye-witnesses. According to the complainant, the police had not arrested Ghulam Rasul accused in spite of his application to the superior police officers and had not taken into custody his licensed gun therefore, the complaint EARL had been filed.
4. P.W.1 Dr. Muhammad Ishaque conducted the post-mortem examination of Muhammad Siddique on 6-9-1986 at 4-00 p.m. And observed the following injuries on the dead body:-- (1)A wound of inlet 1 c.m. x 1 c.m. Margins were inverted. They were slightly burnt and blackened on front of lower half of right chest.
(2)A wound of inlet 0.5 c.m. x 0.5 c.m. Margins inverted slightly burnt and blackened 2 c.m. And medial to injury No.11.
(3)A wound of inlet 0.5 c.m. x 0.5 c.m. With blackened inverted margins 4 c.m. Inner to right nipple.
(4)A wound of inlet 1 c.m. x 1 c.m. Margins were inverted blackened on front and lower half left chest.
6 c.m. Medial and lower and lower nipple.
(5)A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins on front and lower to sternum.
(6)A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins on right hypochondrum.
Omentum is coming out of the wound.
(7)A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins just inner to injury No.6.
(8)A wound of inlet 0.5 c.m. x 0.5 c.m. With blackened and inverted margins on epigastrium just left to mid-line.
(9)A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins on back and outer of left wrist joint.
(10) A wound of outlet 2 c.m. x 1 c.m. With everted margins at root of left thumb at palmer side, it is inter-connected with injury No.9.
(11) A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins on back and root of left index finger.
(12) A wound of outlet 2 c.m. x 1 c.m. On root of left index finger on palmer side. It is interconnected with injury No.11.
(13) A wound inlet 1 c.m. x I c.m. On back of left hand near wrist joint.
(14) A wound of outlet 1.5 c.m. x 1 c.m. With everted margins at palmer side of left hand below the wrist joint injuries Nos.13 and 14 are interconnected.
(15) A wound of inlet '1 c.m. x 1 c.m. With blackened inverted margins on back of left hand at medial and of left wrist joint.
(16) A wound of outlet 1.5 c.m. x 1 c.m. On palmer side of hand at medial side of left wrist joint. It is interconnected with injury No-15.
(17) A wound of inlet 1 c.m. x 1 c.m. With blackened inverted-margins just below injury No.15.
(18) A wound of outlet 1.5 c.m. x 1 c.m. Just below injury No.16. It is interconnected with injury No.17.
(19) A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins on outer and middle of right chest.
(20) A wound of outlet 1 c.m. x 1 c.m. With everted margins on back and middle of right chest. 8 c.m.
Back to injury No.19. It is interconnected with injury No.19.
(21) A wound of inlet 2 c.m. x 1 c.m. Margins inverted 2 c.m. Back to injury No.20.
(22) A wound of outlet 0.5 c.m. x 1 c.m. With everted margins on back, outer and upper right chest.
(23) A wound of inlet 1 c.m. x 1 c.m. With blackened inverted margins on right exilla outer fold.
(24) A 'wound of inlet 1 c.m. x 1 c.m. Blackened inverted margins on front, inner and middle of right upper arm.
(25)A wound of outlet 1 c.m. x 1 c.m. Everted margins on upper of left gluteal region.
On internal examination his observations were as follows:-- "Dissection of chest. On right side there was fracture of fifth rib under injury No.3, 6th rib under injury No.2, 9th rib under injury No.1. These injuries 1, 2 and 3 had also injured the lung. On left side 5th rib was fractured under injury No.4, it had also injured the lung and heart. Injury No.5 had injured the sternum and lung.
Injuries Nos. 6 and 7 had injured the peritonium and liver. Injury No.8 had injured the peritonium and had also injured the small intestine through and through.
First metacarpal was found fractured under injury No.9. 2nd metacarpal bone fractured under injury No.11. There was fracture of third metacarpal under injury No.13. One metalic foreign body rounded in shape removed from subcutaneous tissues at back and middle of right chest. 2 rounded metalic foreign bodies were removed from back outer and upper of right chest. One rounded metalic body removed from back and middle of right upper arm under injury No.24. One elongated metalic foreign body removed from subcutaneous tissue from upper of left gluteal region.
Stomach was healthy and contained 2 ounces of digested fluid and gases. Bladder contained about 4 oz. Of urine.
All injuries were ante-mortem and were caused by fire-arm. Injuries Nos.4, 6 and 7 were grievous and dangerous to life. Injuries Nos.1, 2, 3, 5, 8, 9, 1 and 13 were grievous. Injures Nos.15, 17, 19, 23 and 24 were simple. Injuries Nos. 10, 12, 14, 16, 18, 20, 21, 22 and 25 were outlets.
5. P.W.11 Mubarik Ali Shah, S.I./Investigating Officer recorded the F.I.R on 6-9-1986 on the statement of Sahib Din complainant at the police station and then he proceeded to the spot. He prepared the inquest report Exh.P.3. And took into possession the empties of cartridges and sealed them into parcel vide recovery memo. Exh. P.D. Which was signed by the witnesses. He prepared the injury statement Exh. P.K. And took into possession blood-stained earth after sealing the same into parcel, vide memo. Exh. P.C. He sent the dead body for post-mortem examination. Shaukat Ali Constable produced before him last-worn clothes of the deceased Kurta P.7, Bunian P.8. Tehmat P.9 and Parna P.10 alongwith sealed bottle containing pellets P.11 which were taken into possession by this witness vide memo. Exh. P.L. He prepared rough sketch of the place of occurrence which is Exh. P.M.
Carbon copy of the same is Exh.P.M./1. He arrested the accused persons on 26-9-1986. He recovered .12 bore gun P.5 at the instance of Irshad accused from his house which was made into sealed parcel and taken into possession vide memo. Exh. P.F. On the same day he recovered carbine P.4 at the instance of Sarnawaz accused from house of Irshad accused. It was sealed and taken into possession vide memo. Exh.P.E. On the same day he recovered 7 m.m. Rifle at the instance of Mansha accused from the house of Irshad accused which was also sealed and made into sealed parcel and secured through memo. Exh. P.G. He prepared rough site plans of the place of above said recoveries Exh.P.E./1, Exh.P.F./1 and Exh.P.G./1 respectively. He got prepared the site plan Exhs. P.B. And P.B./1 from the draftsman about the place of occurrence and entered his notes in red ink on the same. He handed over the parcels of empties and blood-stained earth to Muharrir on 6-9-1988. He handed over parcel of weapon to the Muharrir. He recorded statements of the P.Ws. After his transfer, Syed Shabbir Hussain, S.H.O., Police Station Sadar prepared and submitted the report under section 173, Cr.P.C.
6. P.W.2 is Arif Hussain, draftsman. He visited the spot on 8-9-1986 and on the pointation of the P.Ws.
And direction of the police he prepared the site plan, Exh. P.B. And Exh.P.B./1. All the drawings and notes in black ink are in his hand and he had signed the same.
7. P.W.3 is Ejaz Hussain, A.S.I. While posted as Head Constable on 3-11-1986 he handed over one parcel of .12 bore gun, one parcel of carbine and 3 parcels of empties to Shoukat Ali Constable No.2 for transmission to the office of the Forensic Science Laboratory, Lahore, intact.
8. P.W.4 is Muhammad Akhtar H.C. On 6-9-1986 he received sealed parcel of blood-stained earth and three parcels of empties of cartridges from the Investigating Officer. He was also handed over last-worn clothes of deceased. He was handed over three sealed parcels of the fire-arm weapon on 29-9-1986 by the Investigating Officer. On 25-9-1986 he sent parcel of blood-stained earth to the office of Chemical Examiner, Lahore through Shoukat Ali Constable No.2, intact. Then he was transferred on 14-10-1986 and the remaining parcels were handed over to Moharrir, intact.
9. P.W.5, Talib Hussain is recovery witness of the blood-stained earth and three empties of cartridges. He attested the memos. Exh. P.C. And Exh. P.D.
10. P.W.6 is Nazir Ahmed. He is a recovery witness of carbine P.4 at instance of Sarnawaz accused, 19/20 days after the occurrence. He attested the recovery memo. Exh.P.E. Irshad alias Shadu accused led to recovery of gun P.5 from his house in presence of this witness and recovery memo.
Exh. P.F. Was attested by Nazir Ahmed.
11. P.W.7 is Muhammad Sarwar. He is also a recovery witness of rifle P.6 at instance of Muhammad Mansha accused from the house of Irshad accused and he attested the recovery memo. Exh. P.G.
12. P.W.8 is Sahib Din complainant. P.W.9 Bashir Ahmed and P.W.10 Safdar Ali are the eye-witnesses.
P.W.11 is Investigating Officer. P.W.12 is Syed Shabbir Hussain Shah, S.H.O. Who prepared the report under section 173, Cr.P.C.
13. P.W.13 is Shaukat Ali, Constable who escorted the dead body and produced the last-worn clothes of the deceased alongwith sealed phial before the Investigating Officer and attested recovery memo. Exh. P.L. He was also handed over parcels of blood-stained earth which he delivered intact in the office of the Chemical Examiner, Lahore on 25-9-1986. On 3-4-1986 the Muharrir handed over to him 3 sealed parcels of carbine, gun and empties which he delivered intact in the office of Forensic Science Laboratory, Lahore, on the same day.
14. P.W.14, Muhammad Sarwar, was examined about the motive, on the application of the complainant submitted during the arguments in the case.
15. The prosecution had further produced the report of Chemical Examiner Exh. P.N., report of Serologist Exh. P.O. And report of Forensic Science Laboratory. The remaining P.Ws. Were given up as being won over.
16. Eye-witness account has been furnished by Sahib Din P.W.8, Basher Ahmed P.W.9 and Safdar Ali P.W.10. According to the eye-witness account, one year and 8/9 months prior to 20-4-1988 Sahib Din accompanied by Bashir Ahmed, and Siddique had gone to the house of Abdullah, uncle of P.W.8 Sahib Din at 5-30 a.m. And after remaining there for 30/45 minutes they left his house.
Muhammad Siddique deceased was ahead of them at a distance of few paces. When Muhammad Siddique deceased reached near mosque accused persons Irshad alias Shadu armed with .12 bore gun, Ghulam Rasul armed with .12 bore gun, Mansha armed with 7 m.m. Rifle and Sarnawaz alias Nanna armed with carbine appeared in front of the deceased. Ghulam Rasul accused raised Lalkara that Muhammad Siddique should not go alive, therefore, Irshad alias Shadu accused fired on the chest of Siddique deceased. Sarnawaz alias Nanna fired with his carbine. In the meanwhile Siddique put his left hand on the left side of his abdomen. This fire by Sarnawaz hit Siddique on his left hand which was placed on the abdomen, also hitting him on the left flank. Irshad accused again fired, hitting right flank and right upper arm of the deceased. All the accused persons then fired extensively on all the sides so that nobody could come near them. The occurrence was witnessed by P.Ws. 8, 9 and 10 and Saber who was not examined.
17. The accused persons were examined under section 342, Cr.P.C. They denied the allegations and all the incriminating circumstances against them. To the question as to why this case against them Mansha, Sarnawaz, and Irshad accused stated that due to party faction and enmity they have been implicated in this case and that they are innocent. To the same question Ghulam Rasul accused replied in the same manner but to the question that "do you want to say anything else?" he replied as follows: "The deceased was a person of shady antecedents. He had numerous enemies. He met his end in small hours of morning at the hands of some unknown persons. The occurrence was not witnessed by anybody, but myself and my co-accused were reported against before the police because of the subsisting enmity. I was declared as innocent even by the police but I was again involved in this case through private complaint. I and my co-accused are innocent."
18. The accused persons did not opt to produce any defence evidence and did not offer to make statements on oath in rebuttal of the allegations against them. After statement of P.W.14 about motive the accused persons were re---examined under section 342, Cr.P.C. With reference to the motive story given by P.W.14. They denied the same. No defence witness or statement on oath it rebuttal of the statement about the motive, made by P.W.14, was offered by any of the accused.
19. The learned counsel for the appellants has argued for their acquittal. Submitted that the F.I.R.
Has been lodged after due deliberation and as such is of no legal validity. Further submitted that the motive has been disbelieved for cogent reasons and the recoveries rightly held to be of no consequence for the same reasons by the trial- Court and as such the prosecution is left with only ocular evidence, which comprises of inimical and interested witnesses without any independent and unimpeachable testimony corroborating the same. Further pointed out, that the statements of the P.Ws. Were recorded under section 161, Cr.P.C. After a delay of 2/3 days, hence their testimony need to be discarded entirely. Further contended that the medical evidence is in stark contradiction to the ocular evidence and further submitted that the story of the prosecution is highly improbable. Further contended that the P.Ws. Have been disbelieved in respect of the acquitted co-accused, hence cannot be relied upon to sustain the conviction of the appellants without independent corroboration. Finally submitted that the deceased and other P.Ws. Were involved in enmity of murder with the accused and that the star P.W namely Liaqat was a chance witness who had failed to establish the reason for his presence at the place of occurrence and as such it was safe to assume that the occurrence was unwitnessed having taken place in the dark. In this respect, further submitted, that no evidence had been produced to establish that the appellants knew that the deceased and the P.Ws. Shall be at the maternal-uncle's place at such an unusual hour on the fateful day.
20. On the other hand, the learned counsel for the State argued that the conviction of the appellants is based on ocular evidence duly supported by the medical evidence and that the P.Ws.
Have no reason to falsely implicate him; further submitted that at 6-15 a.m. The accused were identifiable and further submitted that the nature of injuries proved the participation of large number of accessed in the occurrence. Finally submitted that the prosecution has proved its case beyond doubt against the appellant and that the benefit of doubt, if any, had already been given to the co-accused under the facts and circumstances of the case.
21. The contentions raised on behalf of the appellants merit serious consideration. The doubts created about the F.I.R. Having been recorded after deliberations are amply borne out by the testimony of P.W.10 Safdar Ali. Otherwise too the testimony of the said witness bristles with dishonest improvements duly established by having been confronted nine times during his cross- examination. The said P.W. Has stated that the police had recorded the statement of only P.W.8 Sahib Din whereas the Investigating Officer P.W.11 Mubarik Ali Shah, S.I. And P.W.12 Syed Shabbir Hussain S.H.O. Do not refer to any such statement having been recorded, nor was a copy of such a statement supplied to the accused. The said P.W. Is further contradicted by P.W.6 Nazir Ahmad in this respect. Furthermore the statements under section 161, Cr.P.C. Were recorded after a delay of 2/3 days, and as held in Asfandyar Wali v. The State PLD 1978 Pesh.38 and Bakhshal and others v.
The State 199(1 P Cr. L J 1 the same deserve to be discarded.
22. Another aspect of the case to be taken notice of is non-production of Abdullah by the prosecution although the case of the prosecution was based on the vital assertion that the deceased etc. Were visiting the house of the said Abdullah at such an early hour which is not the normal time of visiting and, therefore, the failure of the prosecution to establish the said link in its version of the occurrence has created a doubt that has to be resolved in favour of the appellants/ accused, especially as the prosecution further failed to fill in the gap to the effect as to how did the accused know that the deceased and his party shall be visiting the said Abdullah at his house at such an unusual hour. In this respect, it needs to be pointed out that the conduct of P.W.9 Bashir, claiming to be an eye--witness, is not above suspicion, being contrary to the natural reactions of a person witnessing a murderous assault, for neither did he raise any hue and cry nor did he make an attempt to run away.
23. Furthermore, it has been established during the cross-examination of P.W.5 Talib Hussain that all the P.Ws. Were related inter se and that the deceased had many enmities, and that anyone of which may have led to his being attacked and murdered; and, in fact, in the instant case, his enmity is stated to be with the acquitted co-accused of the appellants namely Ghulam Rasool, thus further weakening the case of the prosecution. Similarly, as stated by P.W.2 Arif Hussain, Draftsman, the site plan Exhs. B, C and D was prepared on 9-9-1986 but neither all the accused are named nor their respective positions stated therein giving rise to the suspicion that the name of the accused may not have been known at the relevant time. And, as pointed out, the motive has been rightly disbelieved by the learned trial Court and the recoveries held to be of no consequence, therefore, the prosecution was only left with the ocular evidence discussed above, and the medical evidence to support its case. However, even the medical evidence leaves a great deal to be desired, for according to the medico---legal report Exh. P.A. The deceased had suffered blackening around all the entry wounds but the same is in contradiction to the ocular version to the effect that the deceased was fired at from a distance of 5 to 6 Karams, and as stated earlier, even the ocular evidence, being inimical, further suffered from dishonest improvements and material contradictions.
24. In view of the above discussion, in keeping with the safe administration of justice, the doubts arising in respect of the case of the prosecution against the appellants have to be resolved in their favour. Therefore, it is hereby held that the prosecution has failed to bring the guilt home to the appellants beyond reasonable doubt, for the reasons stated above, and that the possibility of the occurrence having taken place unwitnessed in the dark cannot be ruled out.
25. Therefore, in view of what has been stated above, the present criminal appeal is allowed and the impugned judgment is hereby set aside. Resultantly the appellants are hereby acquitted of all the offences charged. They shall be released forthwith if not required to be detained in any other case.
26. For the reasons stated above, the Criminal Revision Petition No.703 of 1988, is hereby dismissed.