S.M. ZUBAIR, J.- Muhammad Arif Sethi and Muhammad Naeem alias Chian were tried under sections 353/307/302/34 PPC by the learned Judge of Punjab Special Court for Speedy Trial No. IX, Gujranwala, for causing the murder of Muhammad Hafiz Khan and for causing murderous assault on Liaqat Ali and Asghar Ali Fes., while they were discharging their official duty. The learned trial Judge vide judgment dated 30.3.1988, acquitted Muhammad Naeem of the charges, but convicted Muhammad Arif thereunder and sentenced him to suffer death under section 302 PPC, imprisonment for life and fine of Rs. 25,000/- or in default three years R.I. Under section 307 PPC and two years R.I. And fine of Rs. 5,000/- or in default one year R.I. Under section 353 PPC. The fine if recovered was ordered to be paid to the legal heirs of the deceased. The convict has appealed.
2. The occurence took place on 4-3-1986 at 10.00 p.m. Near Upper Chenab Canal Bridge within the jurisdiction of Police Station Sambrial. F.I.R. Ex. PX/1 was recorded on 5-3-1986 at 1.50 a.m. By Iftikhar Hussain Moharrir P.W. 5, on the written complaint Ex.PX of Ch. Muhammad Ashraf Inspector SHO Police Station Sambrial P.W. 15.
3. The prosecution case is that on the night of 4th March 1986, at 10.00 p.m. Muhammad Ashraf Inspector P.W.15, alongwith Hafiz Khan deceased (FC), Asghar Ali FC (PW.8), Liaqat Ali FC (PW.9), Muhammad Younus P.W. 3 and Muhammad Bashir P.W. 11 was present near Upper Chenab Canal Bridge in connection with the arrest of Muhammad Naeem etc. On a Government vehicle under the orders of higher police officers. At that time, they saw a Suzuki No. STB6198 parked there. The Inspector suspected and asked the driver of the Government vehicle Nasir Ahmad F.C., to stop the vehicle. The driver had just stopped the vehicle near the Suzuki when it was fired at. As a result of the said fire, Muhammad Hafiz Khan, Liaqat Ali and Asghar Ali FCs. Became injured. Muhammad Ashraf Inspector also fired in retaliation and so did Liaqat Ali F.C. It is alleged that one person whose name was later on discovered as Muhammad Naeem fled from the spot by taking advantage of the darkness of night while firing. When the firing ceased, Muhammad Ashraf Inspector and his companions went near the Suzuki and found Muhammad Arif Sethi in injured condition on the driver seat. He had a rifle Mark 4. It was unloaded and four live cartridges were recovered from its magazine. On the personal search of Muhammad Arif Sethi, one dagger was recovered from his possession, for which he had no licence and a separate case under the Arms Ordinance was registered against him. It is stated by the complainant that the appellant and the acquitted accused had fired at the police party in order to kill them. The Inspector accordingly drafted complaint Ex.PX and sent it to the police station, whereas stated above, formal F.I.R. Ex.PX/1 was drawn up by Iftikhar Hussain Moharrir P.W.5.
Muhammad Ashraf Inspector took into possession rifle P.9 and four live cartridges P. 10/1-4 vide memo Ex. PBB. Dagger P. 11 was also taken into possession vide memo. Ex.PCC. He arrested Muhammad Arif Sethi appellant. Suzuki was also taken into possession vide memo Ex.PEE. From the spot he collected empty cartridges P.12/1-10 vide memo. Ex.PGG. He prepared the injury statements of the injured F.Cs. And the appellant and sent them for medical examination. After the medical examination, Amanat Ali FC (PW-12) produced the clothes of the injured FCs. Which were taken into possession vide memo Ex.PZ. He also took the Shalwar of the appellant into possession vide memo.
Ex.PAA.
On 6-3-1986, the Inspector made queries whether the injured F.Cs. Were fit to make statements.
The doctor replied in the affirmative so far as Liaqat Ali and Asghar Ali were concerned. He recorded their statements under section 161 Cr.P.C. With respect to Hafeez Khan F.C. The doctor replied in the negative. On 11-3-1986, the Inspector also made query about the condition of Hafiz Khan to make statement, but the Medical officer again replied in the negative. Thereafter on 12-3- 1986, the Inspector received information that Muhammad Hafiz Khan had died in the hospital, whereupon section 302, PPC was added. Muhammad Ashraf Inspector then proceeded to the hospital, prepared the inquest report Ex. PHH and injury statement Ex.PHH/1 and sent the dead body for postmortem examination. On 12-3-1986, Muhammad Younus (not produced) father of Hafiz Khan deceased produced the belt of Hafiz Khan which was taken into possession vide memo Ex.PH.
The Inspector got prepared the site plan by Zafar Iqbal Patwari P.W.6.
On 9-4-1986, Noor Hussain SI (PW-14) arrested Muhammad Naeem, On 10- 4-1986, he got recovered Kalashnikov P. 13 from his house which was taken into possession vide memo Ex. PFF.
After completing legal formalities, Saheed Ahmad SI/SHO Police Station Sambrial (PW.10) submitted the challan in the Court.
4. Dr. Rizwan Mahmood (P.W. 4) examined the injured F.Cs. The same night i.e. On 4-3-1986, before midnight and found the following injuries on their persons:- MUHAMMAD HAFEZ KHAN.
1. A lacerated wound, 2-1/2 c.m., depth not probed over the left side of abdomen, about 2 c.m.
Lateral to the umbilicus with inverted margins blackening and burning present.
2. A lacerated wound, 2-1/2 cm x 1 cm, depth not probed. Left side of abdomen about 8 cm lateral to injury No. 1 with everted margins.
The doctor kept both the injuries under observation and advised X-Ray of the abdomen. He opined that the injuries were caused by firearm.
LIAQAT ALI.
1. A lacerated wound, 4 cm x 1-1/2 c.m. Over the outer aspect of the middle of left thigh, blackining and burning present.
2. An abraided swelling, 1 cm x 1/2 cm., over the left side of abdomen.
The doctor opined that injury No. 1 was caused by firearm whereas injury No. 2 was the result of a blunt weapon.
ASGHAR ALI.
1. A circular lacerated wound, 1/2 cm in diameter, with inverted margins, blackening and burning present, over the right side of abdomen.
2. A circular lacerated wound, 1Rs2 cm in diameter, depth not probed, over the right side of back of abdomen, about 4 c.m. Laterally and posteriority to injury No. 1 with everted margins.
The doctor kept both the injuries under observation and opined that these injuries had been caused by firearm.
5. The appellant was examined on 5-3-1986 by Dr. Rizwan Mahmood P.W. 4, who noticed the following injuries on his person:--
1. A lacerated wound, 3 cm x 1-1/2 cm, depth not probed, with inverted margins, blackening and burning of the skin present at posterior aspect of the right lower leg about its middle. . .
2. A lacerated wound, 3 cm x 6 cm, depth not probed with averted margins over the front of right lower leg.
3. A lacerated wound, 1-1/2 cm x 1 cm, over the front of right knee joint, skin deep.
The doctor opined that injuries Nos. 1 and 2 were caused by fire arm whereas injury No. 3 was the result of blunt weapon.
6. On the death of Muhammad Hafiz Khan, post mortem examination was conducted by the same doctor on 12-3-1986, who noticed two lacerated wounds, two incised wounds, one linear incised wound and one transver incised wound thereon. Injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature were the result of firearm. Injury No. 1 was entrance wound whereas injury No. 2 was exit wound. Death was due to these injuries which caused shock and haemorrhage leading to cardio respiratory failure. Both these injuries are reproduced as under:--
1. A lacerated wound, 2-1/2 cm x 1-1/2 cm, over the left side of abdomen, about 2 cm lateral to the umbilicus.
2. A lacerated wound, 2-1/2 cm x 1 cm over the left side of abdomen, about 8 cm lateral to injury Jo.
1.
7. The appellant when examined under section 342 Cr.P.C, denied the prosecution allegations levelled against him. He deposed that he was neither present at the spot nor participated in the occurrence. He stated that the recovery of illicit arms had been plained upon him, that is why he was acquitted by the learned Magistrate under the Arms Ordinance case. He stated that Muhammad Younus who appeared as P.W.1 in fact supported the defence version.
When questioned, 'how do you explain your injury", the appellant stated:- "I was arrested by CIA police Sadar about a week before this occurrence. The Sambrial police informed CIA on the night between - 4-5/4-1986, that three constables, namely, Hafezullah, Asghar and Li\aqat had been injured by some unknown culprits in the darkness of night by fire shots. The police conspired to falsely implicate me in this case. S.I. Tahir Razaq of the C.IA. Tortured me on 5- 3-1986 at about 5.00 a.m. And also shot at my right leg with the revolver at CIA. Subsequently the same S.I. Got medically examined with the connivance of Inspector Muhammad Ashraf and I was roped in this case."
The appellant further stated that the police could not trace out the actual assailants of the deceased and the injured FCs, therefore, they had involved him in this case falsely. He stated that the police was interested and inimical towards him and that Muhammad Bashir P.W. Was a stock witness. No evidence was produced in defence except that documentary evidence.
8. Placing reliance on the ocular version furnished by Asghar Ali F.C. (PW8), Li\aqat Ali, F.C. (PW9), Muhammad Bashir (PW11). Amanat Ali (PW12) and Muhammad Ashraf, Inspector (PW15), fortified by the medical and circumstantial evidence. The learned trial Judge convicted him and awarded him the sentence mentioned above.
In appeal, the learned counsel for the appellant raised the following contentions:- a) That the murder was not seen by any of four eye-witnesses. It was infact an unseen occurrence, it took place when it was dark and none of the eye witnesses saw the real culprits. b) that the prosecution version is highly improbable unnatural being against the medical and circumstantial evidence and learned trial Judge has erred in law and facts by placing reliance on this dubious evidence. c) that the ocular evidence which is coming from the mouth of the highly inimical and interest witnesses stands contradicted by the medical evidence. d) the defence version, is probable and in accordance with the evidence, the learned trial Judge without proper appreciation of the evidence has rejected the defence plea which has resulted into the miscarriage of justice.
9. The learned State counsel has supported the judgment of the learned trial Judge on the same grounds which prevailed with him while recording the conviction.
10. We have gone through the entire record carefully and have also examined critically the respective submissions of the parties.
11. Admittedly the present case is a case of two versions. One version has been put forth by the prosecution supported by the ocular evidence mentioned above whereas the other version has been advanced by the defence that as the real culprits were not known to the police, because the Police F.Cs. Received injuries in the darkness of the night and none of the eye witnesses saw the real culprit and the police in order to cover up their inefficiency has falsely involved the appellant in this case.
12. The salutary principle for the just decision of the case of two versions is that both these versions are put in juxta-position, then the Court has to see which version ik more probable and nearer to the truth on the basis of the evidence adduced by the prosecution, and by the defence, if any, keeping in mind the now well recognised principle of criminal jurisprudence that the prosecution must affirmatively prove its own case, the onus for which remains on it throughout.
13. A perusal of the evidence of Iftikhar Hussain (PW.5) who was Moharrar Head Constable at the Police Station Sambarial on 14.3.1986 demonstrates that Muhammad Ashraf (P.W. 15) was not with the injured Constables when the alleged occurrence took place. Iftikhar Hussain (P.W. 5) deposed "that according to entry No. 7 dated 4.3.1986 of the daily diary of P.S. Sambarial Mohammad Ashraf left the P.S. At 5.15. p.m. Alongwith ASI's Rehmat and Zumarad Hussain and constables Khadim Hussain No. 274 Mohammad Iqbal No. 685, Mohammad Ashraf No. 547, and Amanat Ali No. 42 for Naqa Bandi duty. Constable Mohammad Ashraf and Amanat Ali were issued armoury from the Malkhana. The Daily Diary used to be closed at 4 p.m. Daily". This piece of evidence lends support to the defence version that these constables received injuries in the night while petrolling somewhere in the illaqa when they were not accompanied by the alleged eye witnesses. Even the prosecution has failed to prove this important fact in which Police Van these injured constables received injuries at the hands of the assailants on the day of occurrence, because neither the Police Van was produced in the Court nor the blood was recovered from the Van which could have substantiated the claim of the prosecution that the occurrence took place in that particular Police Van or near it. Strangely enough, rio blood was recovered from the scene of occurrence by the Police during the investigation which also gives support to the defence version that the occurrence did not take place in the manner as suggested by the Police, most probably the occurrence took place somewhere else and later on the Police cooked up a false case against the appellant due to his alleged criminal background as he was already in the illegal detention of the C.IA. Police Sialkot, Another interesting feature of this case is that according to the Police the assailants opened fire on the three injured constables with their automatic weapons, thereafter except the appellant the other assailants decamped from the place of occurrence, but no crime empties were recovered by the Police from the place of occurrence. This defect in the prosecution evidence also shows that the version advanced by the prosecution is not tenable, on the contrary version given by the defence is plausible and nearer to the truth. The only crime empties which were recovered from the place of occurrence, were ten in numbers, which were fired by the police Foot Constables in their self-defence. Over and above this, the appellant though arrested at the spot from the suzuki van in injured condition by the police but the police did not find any blood in suzuki van or near it on the earth, which also gives gome support to the defence version that the appellant did not receive injuries in the Police encounter as alleged by the receive injuries in the Police encounter as alleged by the prosecution. Even Muhammad Ashraf (PW 15) in his statement conceded that the appellant did not received injuries in the police encounter which completely demolishes the case of the Police. The Police has not also produced Suzuki van in the Court as presumably there was no marks of bullets on this suzuki van which also negates the version given by the Police. In addition to that, neither the owner of the suzuki van was examined in this case nor there is any evidence to this fact that the appellant was put to any test identification parade to prove the fact that the appellant or his acquitted co-accused actually snatched this van from the owner, who allegedly lodged the FIR in this respect.
14. A careful analysis of the medical evidence completely shatters the prosecution case. The medical evidence shows the injured Foot Constable received these injuries from very close range, as blackening and burning were present on these wounds. These injuries cannot be sustained in the police encounter because burning and blackening of the wounds suggests that the injuries were from very close range, probable from six feet distance. On the contrary, the ocular version is that the Foot constables were sitting in the Police Van when the fine was opened on them from behind with automatic weapons. Another interesting feature of this case is that the police constables were examined from 11.35 p.m. Onwards by Dr. Rizwan Mahmood (P.W.4) on 4.3.1986 whereas the F.I.R; shows that the injured Foot Constables were sent by the I.O. At 1.20 a.m. On 5.3.1986. Even the applications Ex.PK, PL,PN on the basis of which medical examination was conducted, were drafted on 53.1986 and not on 4.3.1986. The prosecution has failed to furnish any reasonable and probable explanation with regard to this glaring discrepancy. The entries regarding the relatives or the persons who brought these injured Foot constables to the hospital, are of dubious character which also suggest that these entries were recorded later on to beef up the prosecution case.
15. In the presence of the discrepancies and the contradictions referred above, the defence version seems to be plausible and probable, that the occurrence did not take place in the manner as suggested by the prosecution. It appears, the appellant was brought from somewhere else, then, he was shown as involved in this fake and fictitious police encounter, in which one Foot constable died, and two other Foot constables received injuries allegedly at the hands of the appellant. Had the appellant been involved in the police encounter, in all probability he would have received injuries in the transaction, and the duration of his injuries in the transaction, and the duration of his injuries and the injuries of these constables would have been the same, whereas according to the medical evidence, the appellant received injuries on his person at a different time, which also negates the prosecution version. In addition to that the record shows that the appellant though arrested at the spot was not medically examined immediately, but he was examined approximately after a lapse of 12 hours, i.e. On 5.3.1986 at 3.10 p.m., which also goes to prove that the appellant was not with police when the alleged occurrence took place. Had the appellant been arrested at the spot, in all probability, he would have been sent along with the Police constables for medical examination to the hospital. Even evidence of the doctor confirms that the appellant did not receive injuries at the same time along with police constables. The injury found on the person of the appellant had inverted margin, blackening and burning of the skin, which shows this injury too was received from very close range, which falsifies the prosecution case.
16. The upshot of the above discussion is that the prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt and defence version seems to be natural and probable, hence by giving benefit of doubt to the appellant, we accept this appeal and set aside his conviction and sentence. We direct that the appellant be set at liberty forthwith, if not required to be detained in any other case.