SARDAR MUHAMMAD DOGAR, J.---Swans (30), Muhammad Yamin (31), and Nasrullah (22) were tried by Additional Sessions Judge, Mianwali under section 302/34, P.P.C. Alongwith Gulnawaz for having murdered Murid Abbas and Sher Muhammad on 17-8-1987 at 5-00 p.m. At Adda Harnoli in the area of village Harnoli at a distance of 14 miles from Police Station Piplan.
Vide judgment, dated 11-3-1989 Swans was convicted under section 302, P.P.C. For having murdered Murid Abbas and was sentenced to death, plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. For two years. Half of the fine, on realization was directed to be paid to the heirs of the deceased.
Yamin and Nasrullah were convicted under section 302/34, P.P.C. For having murdered Sher Muhammad. Yamin was sentenced to death while Nasrullah was sentenced to imprisonment for life. Each of them was also sentenced to pay a fine of Rs.5,000 each in default whereof to undergo R.I. For two years each. Half of the fine, on realization, was directed to be paid as compensation to the heirs of the deceased.
Gulnawaz was acquitted.
2. The convicts have fled appeal. Learned trial Judge has made reference for confirmation of death sentence. The complainant has filed a revision petition wherein prayer has been made for enhancement of the sentences of fine and for payment of the same as compensation to the heirs of the deceased. The revision petition was admitted and notice stands issued to the convicts to show cause that is case their convictions are maintained why should they not be ordered to pay enhanced amounts of compensation. Since all the matters have arisen out of the same judgment they are being disposed of together.
3. F.I.R. Exh.P.L. Was recorded at the police station by Faiz Muhammad S.H.O. (P.W.10) at 6-30 p.m. On 17-8-1987 on the statement of Alam Khan (P.W.8).
According to F.I.R. The complainant accompanied by Murid Abbas and Sher Muhammad reached Chungi Adda while on way to Adda Harno6. Fateh Muhammad, uncle of the complainant, was standing there. He started talking to him. Murid Abbas and Sher Muhammad continued walking towards the Adda. Swans (appellant) came across them on the road armed with a double barrel gun. After raising a Lalkara he fired a shot at Murid Abbas which struck him on the chest. Second shot fired simultaneously, struck Murid Abbas on the left flank. He fell on the road and died. Sher Muhammad ran towards north. He was chased by Swans. Muhammad Yamin and Nasrullah armed with guns also joined him. Both of them, i.e. Muhammad Yamin and Nasrullah fired a snot each which hit Sher Muhammad on the buttocks. Sher Muhammad turned back to look whereupon Nasrullah fired a shot hitting him on the chest. SW Muhammad ran towards north away from shops.
Both the accused, i.e. Nasrullah and Yamin followed him running. Raza Muhammad P.W. Who was sitting in the hotel of Shoaib raised alarm. Sher Muhammad fell down. Yamin fired another shot on his left shoulder. Sher Muhammad died at the spot. The occurrence was witnessed by the complainant, Fateh Muhammad and Raza Muhammad. The accused while raising Lalkaras sat in the car driven by Gulnawaz and moved away.
For motive for the occurrence, it is stated therein that Khalas brother of Swans was murdered in 1984 wherein Ashiq, Abdul Wahid and Khan Muhammad were challaned. The accused murdered Sher Muhammad and Murid Abbas for avenging the murder of Khalas.
4. Faiz Muhammad, S.H.O. After recording F.I.R. Reached the spot. He despatched the dead bodies of Murid Abbas and Sher Muhammad for post-mortem after preparing injury statements Exhs.P.M.
And P.O. And inquest reports Exhs.P.N. And P.Q. Respectively. During spot inspection, he collected blood-stained earth from the place where Sher Muhammad was murdered vide memo. Exh.P.F.
And from the place where Murid Abbas was murdered vide memo. Exh.P.E. Crime empty P.19 lying near the dead body of Sher Muhammad deceased was taken into possession vide memo. Exh.P.H., while crime empties P.17 and P.18 lying near the dead body of Murid Abbas were taken into possession vide memo. Exh.P.H.
Nasrullah and Muhammad Yamin were arrested by him on 16-9-1987 on being produced before him by Muhammad Nawaz Assar Gulnawaz was arrested on appearing before him on 21-9-1987.
Car No.9742/RIK alongwith papers produced before him was taken into possession vide memo.
Exh.P.C.
Swans was arrested on 29-9-1987 on being produced by Muhammad Nawaz Assar. Licensed gun P.12 alongwith licence P.13 produced by him at the time of arrest were taken into possession vide memo. Exh.P.B. Challan was submitted to Court after completion of necessary investigation.
5. Statements of 10 P.Ws. Were recorded at the trial.
Dr. Mumtaz Ahmad Khan who had performed autopsy on the dead body of Murid Abbas on 18-8- 1987 at 7-45 a.m. Appeared P.W.7. He had noted following injuries on the body of the deceased:--
(1) An entry wound 6 c.m. x 4 c.m. Over the front of right chest, 2 cm. From mid-line and 2 c.m. From the right nipple, 7 c.m. Below the clavical.
(2) 7 wounds of exit and in area of 7 c.m. x 7 c.m. Over the lateral aspect of left chest, 1/2 c.m. x 1/2 c.m. Each 8 c.m. Above the costal margin.
During internal examination, 4th to 7th right cartilages, pleurae, both lungs, 7th and 8th ribs were found fractured. Heart was found smashed.
Death was opined to have occurred due to shock and haemorrhage resulting from injury No.1. It was opined to be sufficient to cause death in the ordinary course of nature. The injuries were opined to have been caused by fire-arm. Probable time between injury and death was opined to be immediate while time between death and post-mortem was opined to be about 12 to 16 hours.
Cardboard, Namda, and 2 pellets extracted from the body were handed over to the police in a scaled packet.
The same doctor had performed autopsy on the dead body of Sher Muhammad on the same day at 8-45 am and had noted following injuries:--
(1) An entry wound 3 c.m. x 2 cm. Over the left back of shoulder just above upper border of scapula and 9 c.m. From mid-line.
(2) 6 wounds of exit in the area of 8 c.m. And 6 c.m. Over the front of right chest on its upper part extending to left chest being 4 c.m. From right nipple.
(3) An entry wound I c.m. x 1 c.m. Over the back of left chest 6 cm. From mid-line below the left scapula at a distance of 9 c.m.
(4) An entry wound 1 c.m. x 1 c.m. On tie back of right upper arm, 1.5 c.m. Above the elbow joint on its posterior aspect.
(5) An exit wound 1 c.m. x 1 c.m. Over the right upper arm on its posterior aspect, 2 c.m. From injury No.4.
(6) An entry wound 1 c.m. x 1 c.m. Over the posterior medial side of left thigh, 3 c.m. Below the perineum.
(7) An exit wound 1 c.m. x 1 c.m. Over the medial side of left thigh, 12 c.m. Wow the anterior superior iliac spine.
(8) An entry wound 1 c.m. x 1/2 c.m. Over the right buttock, 17 c.m. From iliac crest.
(9) An exit wound 1/2 c.m. x 1/2 c.m. Over the inferio medial side of right buttock, 4 c.m. From injury No.8.
(10) An entry wound 1 c.m. x 1 c.m. Over the left buttock 9 c.m. Below left iliac crest, 6 c.m. From mid- line.
(11) An entry wound 1 c.m. x 1 c.m. Over the right buttock, 1 c.m. From mid-line, 6 c.m. Below the right iliac crest.
(12) An exit wound 1/2 cm. x 1/2 c.m. Over the lateral side of left thigh and 9 c.m. Below the left anterior superior iliac spine:
(13) An entry wound 1/2 c.m. x 1/2 c.m. Over the right buttock, 10 c.m. Below the right iliac crest and 8 c.m. From mid-line.
(14) An exit wound 1 c.m. x 1/2 c.m. Over the ventral side of penis, 1 c.m. From base of penis.
(15) An exit wound 1 c.m. x 1/2 c.m. Over ventral aspect of penis, 1 c.m. Above injury No.14.
On internal examination, 3rd rib, sternum, left scapula, left pleurae, left lung, heart, and left aorta were found punctured. Death was opined to have occurred due to shock and haemorrhage caused by injury No.1 and injuries to the buttocks individually as well as collectively. Probable duration between injuries and death was opined to be immediate while time between death and post-mortem was opined about 12 hours. Cardboard, Namda, and three pellets extracted from the body were handed over to the police in a sealed packet.
6. Ocular account was deposed to by Alam Khan (P.W.8) and Raza Khan (P.W.9).
Alam Khan after repeating the facts given by him in the F.I.R. Stated during cross-examination that they were going to bus stand to see off Sher Muhammad who was leaving for Bannu. He stated that they had witnessed the murder of Murid Abbas from near the hotel and of Sher Muhammad being done to death by following him. According to him, Swans had not fired at Sher Muhammad.
He admitted that Zafar brother of Sher Muhammad stood challaned under section 307, P.P.C. For injuring a person whose name he did not know. While admitting that Muhammad Yamin was the complainant in the, murder case against Abdul Wahid etc., he denied that revision petition filed by him against the acquitted accused was pending and that he was involved in this case to deter him to pursue that case. He expressed ignorance about Khurshid Shah having been cited as an eye- witness in the case. He denied the suggestion that the shopkeepers had appeared in defence of Nasrullah. He stated that Fateh Muhammad P.W. Was father of Abdul Wahid (accused of the murder of Khalas). He admitted that Ashiq Matrah was murdered before this occurrence and Hakam his sister's son was being prosecuted for that. He also admitted that the motive alleged in that report was that Hakam had committed the murder to avenge the murder of Khalas. He expressed ignorance about the names of Nasrullah and Yamin having been placed in column No.2 of the challan. He denied the suggestion that his wife Mst. Bakhtawar had been abducted by one Inayat and that both the deceased had brought her back from the house of Inayat in his absence and that Inayat had proclaimed that he will not spare them. He denied the suggestion that he had not witnessed the occurrence.
7. Raza Muhammad (P.W.9) corroborated the statement made by P.W.8 in so far as it pertains to actual occurrence. During cross-examination, he stated that he had gone to the bus stop to see off his guests and had thereafter stayed at the tea stall to take tea. According to him: Murid Abbas was murdered at a distance of 35 Karams from the place where he was sitting hit stated that there were 40 to 50 shops on both sides of the road. He gave out that his father was first cousin of the grandfather of Fateh Muhammad P.W. He denied the suggestion that womenfolk of Swans had come to the Adda after having some brawl with the family of Ayub whose daughter was being married on that day and were sitting in the wagon of Khurshid Ali Shah. He also denied the suggestion that Swans had come there to get them back. The suggestion that both the deceased had hurled filthy abuses and taunted Swans that he did not have the courage to avenge the murder of his brother Khalas Khan. He denied the suggestion that he had not witnessed the occurrence.
8. Faiz Muhammad S.H.O. Who had registered the case and submitted the challan to Court after completion of necessary investigation appeared as P.W.10 and gave the details of investigation.
During cross-examination, he admitted that he had not mentioned the presence of empties in column No.23 of the inquest reports. He, however, denied the suggestion that no empty had been recovered from the spot. According to him, there were 150/200 shops around the place of occurrence. He stated that the pleas of alibis raised by Nasrullah and Muhammad Yamin were accepted after verification by D.S.P. Muhammad Akram and D.S.P. Nabi Bakhsh. According to him, their names were placed in column No.2 of the challan on their having been found innocent. He stated that Khurshid Ali Shah who had claimed himself to be an eye-witness was cited as a prosecution witness in the calendar of witnesses.
The statements of the remaining P.Ws. Are more or less of a formal nature.
9. Positive reports Exhs.P.S., P.T. And P.U. From the offices of Chemical Examiner, Serologist, and Forensic Science Laboratory were also tendered in evidence. According to the report from the office of Forensic Science Laboratory the two crime empties taken into possession from near the dead body of Murid Abbas and one crime empty taken into possession, from near the body of Sher Muhammad were found to have been fired from the gun recovered from Swans.
10. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. However, they neither made statements on oath nor produced any evidence in defence. Swans stated that his licensed gun P.12 had, in fact, been taken by police into possession from his house on the very first day of the occurrence.
11. Learned counsel for the appellants after having taken us through the evidence criticised the impugned judgment and contended that the ocular account deposed to by inimical and interested witnesses was not worth acting upon, that the clear contradictions of the ocular account by the medical evidence leads to irresistible conclusion that, they had not witnessed the occurrence. Learned counsel submitted that in view of the inimical background of the witnesses their testimony cannot be acted upon safely without corroboration which was not coming forth from any source. In that learned counsel contended that the evidence of recovery of empties and the wedding of the same with the gun of Swans was not only contradictory to the narration of the occurrence but even otherwise appeared to be a fabricated one. Learned counsel was critical of the fact that the prosecution had withheld Khurshid Ali Shah named as an eye-witness of the occurrence and thus created hurdle for the Courts to come to correct conclusion. He verbally prayed for examining Khurshid Ali Shah as a defence witness if not considered necessary to record his statement as a C.W. Under section 428, Cr.P.C. As additional evidence.
12. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that the occurrence had taken place in the broad daylight and there was no reason to reject the ocular account and the circumstantial evidence, i.e. The evidence of recoveries and the reports from the offices of the Chemical Examiner, Serologist and Forensic Science Laboratory.
13. The occurrence had taken place on 17-8-1987 at 5-00 p.m. At an Adda where there were 150/200 shops according to S.H.O. And 40/50 shops according to P.W.9. However, none of the shopkeepers or any independent person was named as an eye-witness. The only persons who were named in the F.I.R. To have witnessed the occurrence were related to the deceased. No resident of the Adda was joined, even, during the collection of blood-stained earth from the places of occurrence and collection of empties from there.
14. Alam Khan (P.W.8) who had lodged the F.I.R. Was cousin of the deceased. Fateh Muhammad P.W. Was father of Abdul Wahid who had been tried and acquitted for the murder of Khalas Khan for avenging the murder of whom the instant occurrence has allegedly to have been committed.
Muhammad Khan (P.W.6) who claimed to have attested the taking into possession of blood- stained earth from the place of occurrence as well as the empties was also related to both the deceased, as his father and grandfather of Alam Khan P.W. Were cousins. Out of the appellants, Swans was the real brother of Khalas Khan, for whose murder Abdul Wahid and others were tried.
Nasrullah Khan was nephew of Khalas Khan and Swans while Yamin was cousin of Khalas Khan and Swans. Gulnawaz acquitted accused was also a cousin in second degree of Swans and Khalas Khan. It is thus apparent that the 4 P.Ws. Were not only related and interested with the deceased, but were inimical to the accused as well. In the circumstances, their testimony have got to be assessed with care and caution required to be kept in mind in cases of such background.
15. Nasrullah and Yamin appellants had raised pleas of alibi. In that, Yamin had stated that he was on duty in Rawalpindi where he was employed while Nasrullah had pleaded that he was in his house in village Harnoli. Tfhe I.O. After recording their defence evidence has accepted their pleas of alibi. Those were verified and examined by Muhammad Akram D.S.P. And D.S.P. Nabi Bakhsh. Both of them had also come to the same conclusion. In fad according to the I.O. He had cited names of two persons as witnesses in support of the plea of alibi of Muhammad Yamin. No weapon was recovered from them. The matter does not end there. The empty alleged to have been recovered from near the boil; of Sher Muhammad deceased who allegedly had been fired at only by them was found wedded to the licensed gun of Swans taken into possession during investigation. The ocular account them, therefore, appears to be, quite doubtful.
16. Both the eye-witnesses during their statements were categoric that Swans had not fired at Sher Muhammad deceased. In fad, according to one of them Swans had chased Sher Muhammad upto a distance of 5 and 6 Karams only when he had started running. He was murdered at a place about 35 Karams away from the place where Murid Abbas was murdered. It was categorically stated at the trial that Swans had not fired at him. In spite of that the empty said to have been taken into possession from near his dead body was found wedded with his licensed gun.
The wedding of the empty recovered from near the dead body of Sher Muhammad with the gun of Swans further casts doubts about the narration of the occurrence given by the eye-witnesses.
The matter does not end here. The ocular account stands clearly contradicted by the medical evidence. In that, Murid Abbas deceased during post-mortem examination was found to have suffered two fire-arm injuries. Injury No.1 was an entry wound on the front of right chest while injury No.2 was, 7 wounds of exit over the lateral aspect of left chest'. No fire-arm wound of entry was found on the left flank of Murid Abbas. Both the eye-witnesses had categorically stated that the first shot fired short Swans had struck Murid Abbas on the chest while the second shot fired by him had hit him on the left flank. The same fact finds mention in the F.I.R. This narration is in direct conflict with the medical evidence. The diagram of the injuries shows that injury No.2 was near the left flank. What appears to be obvious, is, that the witnesses had not watched the infliction of the injuries and on finding the deceased to have suffered two injuries one on the chest and the other on the left flank, they chose it or were advised to say that he was fired at twice.
18. Sher Muhammad was found to have suffered 15 fire-arm injuries. Seven out of them were exit wounds. There was no wound of entry on his chest. There were, of course, six wounds of exit in the area of 8 c.m. x 6 c.m. Over the front of right chest. This fact is contradictory to the ocular account, wherein it is stated that Sher Muhammad on having suffered injury on the buttocks had turned back to look, whereupon he was fired a shot at the chest by Nasrullah. The same fact finds mention in the F.I.R. This position is similar to the position of injury on the flank of Murid Abbas and for the same reasons, an inference can be drawn that the eye-witnesses had not seen the infliction of injuries and on finding the deceased to have suffered injuries on the chest as well they chose to assign the infection of the said injury to one of the accused.
19. The ocular account deposed to by interested and inimical witnesses dented by the report from the Forensic Science Laboratory and contradicted by the medical evidence, in our view, cannot be safely acted upon for maintaining conviction on capital charges particularly when two of the convicts were only found innocent during the investigation but nothing incriminating was recovered from them, as well, while the plea of the third is that matching of his gun with the empties was due to the fabrication as the police had obtained his licensed gun from his house on the very first day. The plea of fabrication finds support from the fact that the empty recovered from near the dead body of Sher Muhammad was also found wedded with his gun whereas the case of the prosecution clearly was that neither Swans had chased Sher Muhammad nor had fired at him.
20. It is on record that Ashiq Matrah had been murdered before this occurrence for which Hakam son of sister of Swans (and so also sister's son of Khalas Khan deceased murdered earlier) was being prosecuted for that and that it was alleged in the report of that occurrence that the murder was committed to avenge the murder. Yet Khalas. In the circumstances, the stance of the prosecution that the occurrence in hand was committed in order to avenge the murder of Khalas Khan does not carry much importance because the sister's son of Khalas Khan had already avenged his murder. Yet another aspect of the case is that if this occurrence was being committed for avenging the murder of Khalas Khan then Fateh Muhammad P.W. Who was father of Abdul Wahid accused of the murder of Khalas Khan would definitely have been the target. According to the prosecution evidence the accused not only had not launched attack on him, but they did not care even to scare him although he was as easily available to them as the deceased.
For all the reasons noted above, grave doubts have arisen in our minus about the appellants having committed the occurrence. The appeal filed by them is, therefore, allowed. They shall be released forthwith if not required in any other case.
21. Since we have acquitted the appellants, we have not considered necessary to examine the verbal prayer made by learned counsel for the appellants to record the statement of Khurshid Ali Shah by way of additional evidence.
22. As the respondents have been acquitted, question of enhancement of sentences of fine does not arise. The revision petition is, therefore, dismissed.
Sentence of death is not confirmed.
N.H.Q./S-167/L