ASLAM RIAZ HUSSAIN, J.-----Khalas Khan aged 22 years and Abbas Khan, aged 20 years, were tried along with Khaliq Dad (acquitted accused) by the learned Sessions Judge, Mianwali, for offences under section 302/307/394/ 397/34, P. P. C. For the murder of Fazal Qadir, Foot Constable and injuring Mehr Khan, Foot Constable (P. W. 18). The learned trial Judge, by his judgment dated 6- 11-1971 convicted Khalas Khan and Abbas Khan of they aforementioned charges and sentenced them as follows:---
(1) Under section 302/34, P. P. C. To death each.
(2) Under section 307/34, P. P. C. To 7 years' R. I. And a fine of Rs. 2,009 each. Out of the fine, if recovered, Rs. 3,000 should be paid to the heirs of the deceased while the remaining Rs. 1,000 should be paid to Mehr Khan, F. C, the injured P. W.
(3) Under section 39.1/34, P. P. C. To 7 years' R. I. Each.
(4) Under section 397/34, P. P. C. To 7 years' R. I. Each.
The sentences of imprisonment were ordered to run concurrently.
The third accused, namely, Khaliq Dad was acquitted of all the charges.
2. Both the accused have filed an appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. For confirmation of the death sentences. We propose to dispose of both the appeal and the murder references by a single judgment.
3. It is a case of highway robbery where the two appellants armed with guns and Khaliq Dad (acquitted accused), armed with rifle, are said to have stopped a Truck (No. D. N. 1422) on Musa Khel-Talagang Road and fired at the persons sitting on it, killing Fazal Qadir, Foot Constable (deceased) and injuring Mehr Khan, Foot Constable (P. W. 18).
The occurrence took place at about 9-30 p.m. On 16-9-1969. The truck had started from a place called Dullewala, in District Mianwali, and was proceeding to Rawalpindi. It was driven by Abdul Hakim P. W.
13. It stopped at adda of trucks at Mianwali, from where three persons carrying some hens and two or three crates of eggs, boarded it. Thereafter it was stopped by a traffic constable near the District Courts (Mianwali) and four police officials of P. S., Talagang boarded it. These were Habib-ur---Rahman, A. S. I. (P. W. 16). Irshad Haider Khan, .A. S. I., Fazal Qadir, Foot Constable (deceased) and Habib Khan, Foot Constable. They were escorting two prisoners, i.e. Amir Hussain and Ghulam A.I who were to be taken to Police Station, Talagang. When the truck reached Musa Khel, it was stopped by the police at a barrier and two more constables, namely, Sher Jang P. W. 17 and Mehr Khan P. W. 18, both armed with rifles, boarded the truck. They were to accompany the truck as a precaution against hold---ups and robbery, which appears to have become common in that area. The truck then proceeded towards Talagang, which is at a distance of 51 miles from Musa Khel. For sake of clarity it may be mentioned that, at that time, the following persons were travelling in the truck:---
(1) Abdul Hakim, the driver of the truck (P. W. 13).
(2) Muhammad Ramzan, the cleaner of the truck (P. W. 14).
(3) Muhammad Nawaz, owner of the truck. (He appeared as P. W. 2 before the Committing Magistrate but was not produced at the trial).
(4) Habib-ur-Rehman, A. S. I. (P. W. 16).
(5) Irshad Haider Khan, A. S. I. (He appeared as P. W.
4 before the Committing Magistrate but was not produced at the trial).
(6) Fazal Qadir, F. C. (deceased).
(7) Habib Khan, F. C. (He appeared as P. W. 1 before the Committing Magistrate but was not J Mianwali. produced at the trial).These are the policemenwho boarded the truck, District Courts Mianwali.
(8) Amir Hussain (not produced). prisoners being(9) Ghulam Ali (not produced).These were two prisoners being escorted by the four policemen of Talagang Police Station.
(10) Faiz Muhammad (He appeared as P. W.
3beforethe Committing Magistrate but was notproduced at the trial).
(11) Ghulam Yasin (He appeared as P. W. 17before the Committing Magistrate but was notproduced at the trial).
(12) Muhammad Ramzan (not produced at all).These were three businessm en deal-- ding in chicken, who boarded the truck at adda of Trucks, Mianwali.
(13) Sher Jang F.C.,P.W.17
(14) Mehr Khan, F. C., P. W. 18.They werearmed with riflesand boardedthe truck at the barrierat Musa Khel.
Out of them, the two A. S. Is., namely, Habib-ur-Rehman P. W. 16 and Irshad Haider Khan were sitting on the front seat, in the driver's cabin, along with the driver, Abdul Hakim P. W.
13. Out of the remaining, the cleaner and the two constables of Police Station Talangang were sitting on a the top of the driver's cabin, referred to as the `tool-Box' measuring 7 feet x 5 or 6 feet. It was enclosed by a wooden block on all four sides. The front side was 2-- feet in height while the other sides were 2 feet in height. The three businessm en, namely, Fiaz Muhammad, Ghulam Yasin and Muhammad Ramzan were sitting at the back, in the open part of the truck, on top of some bags containing grams, which were being taken to Rawalpindi. The road ran through hilly tract and the truck had to climb up--hill. It was admittedly a pitch-dark night. When the truck had gone about 5 or 6 miles from Musa Khel (towards Talangang), the driver saw some boulders blocking the road. He, therefore, stopped the truck. Two persons each carrying a gun, appeared before the truck, from each side of the barrier and asked the persons travelling in the truck to surrender whatever they were carrying. (The two persons carrying guns were later identified as Khalas Khan and Abbas Khan appellants). The persons in the truck shouted back and warned them that armed policemen were travelling in the truck. The appellants thereupon immediately took positions and fired towards the to --of the truck. A third person (who was armed with a rifle and was not visible to the persons in the truck), was also firing from a place behind the two appellants. The policemen carrying firearms returned the fire. After some exchange of fire all the three accused ran away and it was found that Fazai Qadir, F. C. (deceased), had received a gunshot injury on the right thigh while Mehr Khan, F. C. P. W. 18 had received firearm injuries on the left leg and the outer side of the left buttock.
The truck was thereafter driven to Talagang, where Habib-ur-Rehman, A. S. I. P. W. 16 got the two injured constables admitted in the hospital. Fazal Qadir, F. C. Expired the same night. Habib-ur- Rahman, A. S. I. (P. W. 16) sent a written complaint stating the facts of the incident to Police Station Musa Khel and the formal F. I. R. Exh. P. R./L was recorded on its basis by Shahabal Shah, S. I.. (P. W.
6) at 1-15 a.m. In the (same) night.
Said Ahmad Shah S. H. O. (P. W. 20), of Police Station Musa Khel investigated the case. He visited the spot on 17-9-1969 and took into possession nine. 12 bore empty cartridges P. 23/1-9 and one .303 empty cartridge P. 24 vide memo. Exh. P. L. On 23-9-1969, he arrested the three accused and removed and took into possession Chappal P. 12/1-2 of Khalas. Khan appellant, Chappal P. 13/1-2 of Abbas Khan appellant and Chappal P. 31/1-2 of Khaliq Dad (acquitted accused) vide memo. Exhs.
P. E., P. F. And P. O. On 2-10-1969 the accused persons led the S. H. O. To a place in village Khichi, where sarkandas were growing; dug a pit and got recovered therefrom two guns, a rifle and some cartridges. There were, gun P. 14 and four cartridges P. 22/1-4 belonging to Khalas Khan appellant, a gun P. 19, eight live cartridges P. 20/1-8 and three missed cartridges, P. 21/1-3 belonging to Abbas Khan appellant and a rifle P. 15, an empty P. 16, one missed bullet P. 17 and 10 bullets P. 18/1-10, belonging to Khaliq Dad (acquitted accused). These were taken into possession vide memos.
Exhs. P. C., P. J. And P. H. Respectively. The memos. Were attested, amongst others, by Sardar Khan P.
W. 19 and Said Ahmad Shah P. W.
20. An identi--fucation parade was held in the Central Jail, Mianwali, by Rana Farooq. Ahmad, Naib Tehsildar, P. W. 10, on 25-9-1969, Habib-ur-Rehman, A. S. L.
Irshad Haider Khan, A. S. I., Habib Khan, F. C., Sher tang, F. C. And Abdul. Hakim correctly identified Abbas Khan and Khalas Khan appellants while Muhammad Ramzan P. W. Identified Khaliq Dad (acquitted accused).
4. Dr. Muhammad Latif, Medical Officer, Civil Hospital, Talangang, P. W. 1, who performed the post- mortem examination on the dead body of Fazal Qadir deceased on 17-9-1969, found the following injuries on his person:--
(1) A gunshot wound 1' x 1/4" on the front of right thigh upper part. The margins were everted and blackish.
(2) A gunshot wound 1" x --" on the back of right thigh upper part.
The margins were everted and lacerated. It communicated with injury No. 1.
(3) Two abrasions 2' x --" on the front of right chest lower part.
(4) An abrasion --" x --' on the middle of abdomen 1" to the right of umbilious.
(5) An abrasion --" x 1/8" on the outer side of right leg on the lower part.
The same doctor examined Mehr Khan on 16th September 1969, at 11-25 p.m. And found the following injuries on his person:--
(1) A gunshot wound --" x --' on the back of left leg in the lower part just above the inner side of ankle. Margins were everted and blackish. Skin around was healthy. The wound was bleeding.
(2) A lacerated wound 3" x 2--" up to bone deep on the outer side of left ankle. Both the fibula and tibia were fractured. The margins were everted and irregular. It communicated with the injury No. 1.
The wound was bleeding. It was the wound of exit of injury No. 1.
(3) A gunshot wound --" x --' on the lower and outer side of left buttock. The margins were everted and blackish. Skin around was healthy. The wound was bleeding.
(4) An abrasion -- 'x --' on the left buttock 1' above injury No. 3.
5. After the investigation the accused were challaned and committed to stand their trial before the Court of Session. At the trial the prosecution produced as many as 20 witnesses in support of its case, and has relied on-
(i) the ocular evidence;
(ii) the recoveries; and
(iii) the medical evidence.
6. The accused/appellants when examined denied their guilt and pleaded innocence.
7. We have heard the learned counsel for the parties and have gone through the entire evidence on the record. A note-able feature of this case is that the two victims namely, Fazal Qadir, F. C.
(deceased) and Mehr Khan, F. C. (P. W. 18), the injured person, are both policemen. Moreover, three, out of five eye-witnesses in the case are also polices-men and even the F. I. R, was lodged by an A.
S. I. Namely, Habib-ur-Rahman, A. S. I. (P. W. 16) who had himself witnessed the occurrence. It can, therefore, be assumed that the police had investigated the case very diligently and even the F. I. R.
Was lodged with utmost care and caution and with the background and knowledge that police officers have about such matters. Yet, there is serious contradiction in the prosecution story as given in the F. I. R. And the medical evidence, which goes to falsify the former. There are also other circum--stances which render the story improbable.
There can be no doubt that the hold-up had, in fact, taken place and the truck was fired at, which resulted in the death of Fazal Qadir, F. C. And firearms injuries to Mehr Khan F. C. (P. W. 18). Moreover it cannot be doubted that some of the eye-witnesses were travelling in the truck and were present at the time of the incident. The truck-driver and the cleaner, Abdul Hakim P. W. 13 and Muhammad Ramzan P. W. 14 respectively had, naturally, to be present with their truck. Mehr Khan, F. C. (P. W. 18) bears firearms injuries on his person, which establishes his presence at the spot. And there is no reason to believe that other eye-witnesses, that is Habib-ur-Rehman P. W. 16 and Sher Jang P. W. 17, were not present. The question however, is whether they were able to identify the assailants and whether they were telling the true story. Since, the assailants were not previously known to any of the eye-witnesses, their names could not be mentioned in the F. I. R. The whole case, therefore, turns upon the identi--fucation of the appellants by the eye-witnesses. After carefully scrutinizing the evidence, we have come to the conclusion that although the eye-witnesses are genuine (i.e., they are not procured witnesses) and they were present at the spot at the time of the occurrence and had seen it, yet, the police in its anxiety to strengthen the case and make it absolutely 'fool- proof', introduced certain improvements which, as in many other such cases, have only served to falsify the prosecution story.
8. Before we proceed to record our reasons for this view, it would be useful to describe the location and surrounding area of the place where the occurrence took place the distance from which the appellants fired at truck the extent of visibility and other circumstances relevant to identification of the dacoits by the eye-witnesses.
9. It is borne out from the evidence on the record that it was a pitch dark night and at the relevant time the truck was proceeding from Musa Khel towards Talagong. It was passing through hilly tract and was climb--ing-up. The site plan shows that near the place of occurrence there were a number of zig-zagging bends on the road which are usually found on roads passing through hills.
According to the site-plan the truck had stopped at point No. 1. The blockade formed by the accused persons by placing boulders on the road is shown in front of it, towards its west. The truck is said to have stopped near the boulders. At that time the lights of the truck were on. The two appellants who were hiding behind the boulders are said to have come out from the sides of the blockade and stood up in front of the truck. According to the prosecution, it is because of this (i.e., because the appellants stood up in front of the headlights of the truck), that the eye-witnesses were able to see the appellants (and identify them subsequently). The two appellants are said to have fired at the persons sitting on top of the truck, from places on the road where they had "taken position" behind the boulders. The height of the truck is given by its driver Abdul Hakim P. W. 13, as 13 to 15 feet. The distance from which the two appellants are said to have fired at the truck is given differently by different witnesses. Abdul Hakim P. W. 13 has given it as 6 to 9 qadams (i.e., about 15 to 18 feet). Muhammad Ramzan has given it as 10 to 12 paces. Before the Committing Magistrate he had given the distance as 15 karams. He denied this at the trial but was confronted with his earlier statement before the Committing Magistrate where it was so recorded.
Habib-ur-Rehman P. W. 16 had given the distance as 10 to 15 qadams.
The next witness namely, Sher Jang, F. C. (P. W. 17) has stated that :--- "The accused fired from behind the drums or stones affixed on the road side."
'These drums etc. Are mentioned in the site-plan at Nos. 3 and 4 and their distance is given as 21 feet from the truck (shown at point No. 1 in the same site-plan). Mehr Khan, the injured witness has stated that the appel--lants were at a distance of 5-6 qadams from the truck.
10. From the above facts, it is evident that according to the prosecution witnesses-
(i) they were able to see the faces of the two appellants because they (i.e., the appellants), stood directly in front of the head lights of the truck ;
(ii) the appellants had fired at the truck from a distance, variously given as 5/6 qadams to 10/12 qadams, (i.e. From 121 feet to 30 feet) ;
(iii) that the truck was about 13 to 15 feet high; and
(iv) that the deceased and the injured P. Ws. Were sitting on the top of the driver's cabin of the truck.
The last-mentioned two facts taken together, would indicate that the direction of the firing (and consequently the direction of the injuries received by Fazal Qadir deceased and Mehr Khan, F. C, the injured witnesses) must necessarily be from below upwards. Yet, after carefully going through the medical evidence, we notice that it is not so. Some of the firearm injuries on the person of the deceased as well as on Mohr Khan P. W. 18 were found to have blackish marks on them, which goes to show that they were caused by shots fired from close quarters. According to the Modi's Medical Juris--prudence, the distance from which such firearm injuries can be caused, cannot in any case, be more than 4 feet.
Moreover the inlet and exit wounds caused by those shots on Fazal Qadir deceased and Mohr Khan P. W. Were so placed, in respect of each other, as to show that the persons who fired the shots were at the same level as their victims. Even if some margin is given for the gradient of the road, the assailants (who are said to have been firing from the road, where they had taken up their positions) could not, by any stretch of imagination, have been at the same level as the persons sitting at the top of the truck. The only manner in which the dacoits could have caused such injuries was by firing from a nearby hill, as high as 13 to 14 feet from the surface of the road. Obviously, the dacoits could not possibly have wished to be seen and identified by the persons in the truck. As such it is evident that they would never have stood on the road, right in front of the head-lights of the truck, as stated by the eye-witnesses, and mentioned in the F.I.R., because if they were such dare devils who did not mind being seen or identified, they could easily have stopped and robbed any vehicle during the day time. The mere fact that they had chosen the darkness of the night for staging the hold-up shows that they were anxious to keep their identity hidden. From what has been mentioned above, it is evident that the dacoits waited on the hill--side on the left of the road, knowing full well that any vehicle coming that way would have to stop at the road-block put up by them and when the truck in question stopped near the blockade the dacoits who were sitting at a place (on the hill) which was as high as the top of the truck, they shot at the men sitting on it and were, thus, able to inflict firearm injuries from close quarters as well as from an equal level. In no other way could they have caused such injuries to persons sitting on top of a truck 13/14 feet high.
But we have seen that according to the F. I. R. Lodged by Habib-ur---Rehman, A. S. I., they had fired the shots while standing on the road right in front of the truck. The reason that appears to have compelled Habib--ur-Rehman, A. S. I. To give a different version in the F.I.R. Is that other--wise it could not be said that the eye-witnesses, including himself, had opportunity of seeing the faces of the two appellants in light of the head--lights of the truck. After Habib-ur-Rehman had given this version in the F.I.R., the other eye-witnesses had no choice but to follow it. However, irrespective, of the manner in which the occurrence might have taken place the fact remains that the version given in the F. I. R., is completely falsified by the medical evidence. We, therefore, regret to say that although some of the eye-witnesses were definitely present at the spot, yet they have not given the correct version and their testimony cannot, therefore, be relied upon to maintain the conviction.
11. Besides, their testimony does not find any support from other evidence e.g., that of the 'recoveries' or 'identification'. The three accused are said to have led the police, at the same time, to the same pit (in Village Khichi, some miles away from the spot) and all their weapons of offence namely, gun P. 14, gun P. 19 and rifle P. 15, were found wrapped in the same piece of cloth. It is not stated as to which of the accused had first led to the recovery or pointed out the place from where the firearms were ultimately dug out. It is now well established that joint recoveries are of no use and are not admissible in evidence. In this v may be made to:----
(1) Amir A.I v. State PLD 1960 Kar. 753.
(2) Rekatulla v. State PLD 1962 Dacca 261.
(3) Puttu v. Emperor AIR 1945 Oudh 235.
(4) Faqira v. Emperor AIR 1929 Lah. 665.
12. Even the identification of the appellants at the identification parade appears to be doubtful. The reason for this view is that although the appellants were arrested on 23-9-1969, the officer deputed to conduct the identification parade, namely Rana Farooq Ahmad P. W. 10, informed the S.H.O. That he would hold the identification and track parade of the accused/appellant on the 25th. In the meanwhile most of the witnesses had, admit--tedly, dispersed and bad gone to different places. It is surprising, therefore, as to how such a short date was fixed for holding the identification parade, when it was not even known whether the witnesses, who belonged to different places and were usually travelling in the course of their vocation (or duties), could be collected within a matter of two days. The S. H. O. Has tried to explain this in paragraphs Nos.4 and 5 of his cross-examination but has not been able to do so satisfactorily. It appears and it is the contention of the learned defence counsel that before the witnesses left the police station the S. H. O. Had asked them to return to Musa Khel on or before the 25th because the accused had already been arrested and the Magistrate had fixed the identification parade for the 25th with full knowledge that the eye-- witnesses would be available on that date for taking part in it.
A question, indeed, arises as to why and for what reason are the two appellants being named as the assailants in this case if they had not in fact, been seen by the P. Ws. A reason for this had been suggested by the defence in paragraph No. 3 of the cross-examination of Said Ahmad Shah, S. H.
O. p. W. 20 (the Investigating Officer). The latter has admitted that the accused were already wanted in a murder case registered with Police Station Maibal and that subsequently one of them, namely, Khalas Khan, was even convicted in that case. According to the defence, since the assailants in the present case could not be seen by the P. Ws. (and, as such, their identity could not be ascertained), the police of P. S. Maibal requested the S. H. O., Musa Khel that the three accused who were already wanted in another murder case be involved in this case, as this would serve two purposes. First, that it would establish a fool-proof case against the persons who were already wanted for murder and secondly also that it would provide a face---saving device for the police and save it from criticism for its inability to trace out the culprits in a case in which policeman had been murdered.
13. From what has been discussed in paragraphs Nos. 9 and 10 above, we have come to the conclusion that the assailants had fired from a place which was outside the range of the head- lights of the truck and none of the persons on the truck could possibly have seen them. As such the possibility of the eye-witnesses having seen or identified them is completely ruled out and consequently the testimony of the eye-witnesses is also ruled out of consideration. The recoveries evidence is not believable and the evidence relating to the identification of the accused at the identification parade is suspicious and unreliable.
14. The not result of the above discussion is that although we are e sure that the incident did take place, the prosecution has not been able t prove its case against the appellants beyond reasonable doubt. Consequent their appeal is accepted and the impugned judgment is set aside.
They are given the benefit of doubt and are acquitted of the charges against them. They should be set at liberty forthwith unless they are wanted in some other case. The sentence of death imposed upon them is not confirmed.
15. This also answers the reference under section 374, Cr. P. C.