' Nigah Ali Shah alias Munshi aged 35 years, Alif Shah aged 18 years, Shabbir Shah aged 30 years, Muzammil Shah aged 35 years, Channan Shah aged 80 years and Muhammad Shah aged 30 years were tried under sections 148, 302/149 and 307/149, Pakistan Penal Code for the murder of Rajwali and causing injuries to Yagoob (P. W. 7) and Gul Zaman (P. W. 8) vide judgment dated 22nd February 1971 the learned Sessions Judge, Rawalpindi, convicted Nigah All Shah alias Munshi under section 302/149, Pakistan Penal Code and sentenced him to transportation for life and a fine of Rs, 2,000.00 or in default to undergo two years' rigorous imprisonment, under section 148, Pakistan Penal Code, he was sentenced to one year's rigorous imprisonment and under section 323/149, Pakistan Penal Code, he was sentenced to one year's rigorous imprisonment. All the sentences were to run concurrently. Channan Shah appellant was convicted under sec. Lion 304/149, Pakistan Penal Code and sentenced to two years' rigoroth imprisonment and a fine of Rs, 500.00 or in default to undergo one year' rigorous imprisonment and under section 147, Pakistan Penal Code he was sentenced to six months' rigorous Imprisonment and under section 323/149 Pakistan Penal Code he was sentenced to one year's rigorous imprisonment All the sentences were to run concurrently. Alif Shah, Muhammad Shal Muzammil Shah and Shabbir Shah were, however, acquitted. The conic appellants have filed this appeal against their conviction and sentences.
2. The appellants and the acquitted accused are closely related t, each other. Muzammil Shah, Muhammad Shah (since acquitted) are son of Channan Shah appellant, Alif Shah and Shabbir Shah (since acquitted) are brothers inter se while father of Nigah Ali Shah and grand-father of Channan Shah appellant are real brothers.
3. The occurrence is reported to have taken place on 12th April at Digarwela in village Mohr Jung at a distance of ten miles from Police Station Chauntra, Tehsil and District Rawalpindi. Muhammadji (P. W. 6) nephew of the deceased made the statement (Exh. P. A.) which was recorded by S. I.
Nematullah (P. W. 12) at village Adhwal on the morning of 13th of April 1970 and the formal F. I. R.
(Exh. P. A./1) was recorded by Moharrir Head Constable Mahabat Khan (P. W. 2) on 13th April 1970 at 9 p.m. At Police Station Chauntra.
4. The occurrence is stated to have taken place in the following manner. A caravan comprising of Rajwali (deceased), Gul Zaman, Wali Jan, Yaqoob, Mst. Roshan Jan, the complainant, Muhammad Ayyub (given up P. W.), Sooba, Samunder, Ghulam Farid, Mst. Ghulam Jan and Mst. Umar Jan had come to Punjab. The deceased was their Head-Man. The complainant and his companions were residents of village Soghri, District Hazara, and they had come to Punjab during the winter season.
They had 22 mules and 600 sheep and goats. As the summer season had set in they were going back to their native village and on 12th April 1970 at about Digarwela the party reached near village Mohr Jung. The six accused mentioned above approached the complainant party at the place of occurrence. Nigah Ali Shah appellant, who was armed with a hatchet, told the deceased as to why they had come to that side and he (deceased) replied that they were strangers and would leave for their native village without spending the night. The accused picked up a quarrel with the deceased, Nigah Ali Shah inflected hatchet blows from its blunt side on the head of Rajwali (deceased) who fell down. When Gul Zaman, Yaqoob and Wali Jan went forward to rescue the deceased the accused hurled stones on them and they were injured. The complainant party also hurled stones on the accused in their self-defence. Nigah Ali Shah appellant shouted for help on which several persons turned up there but the complainant party prayed for mercy showing the Holy Quran and then those persons went back and so did the accused. Rajwali (deceased) succumbed to his injuries at Khuftanwela. Muhammadi (P. W. 6) left for Police Station. On reaching near village Adhwal he learned about the presence of the Thanedar in the village, where he made the statement (Exh. P. A.) before him.
5. Nematullah S.I. (P. W. 12) after recording the statement (Exh. P. A.) came to the spot and sent the dead body for post-mortem examination. He also sent Muhammad Yagoob and Gul Zaman P. Ws.
For their medical examination.
6. Dr. Muhammad Aslam Arshad (P. W. 1) conducted the post-mortem examination on the dead body of Rajwali on 14th April 19 0 at 12-15 p.m. And found the following injuries:-
(1) A lacerated wound 1/i' x r bone deep on the right side of head 3r above the ear on front side.
(2) A diffused contusion 2' x 1/i" on the left side of head 3' above the ear.
(3) Both eyes were contused and swollen along with forehead.
(4) Three contusions 3' x to 2' x 1" on the back of left chest on inner side of shoulder blade on lower part.
(5) Two cotusions 3' x 1' and 2' x 1' on the right side of back of chest opposite injury No, 4.
' Frontal bone on right side and right parietal bone on front side were fractured and frontal suture was separated. Membrane and brain were congested. In the opinion of the doctor the deceased died of internal haemorrhage caused by injury No, 1, which had been caused by a blunt object. The time between injuries and death was about two to three hours and between death and post- mortem examination about 42 hours.
' The same doctor on 13th April 1970 at 7-25 p. m. Medically examined Yaqoob P. W. And found five injuries, which were all simple. The same doctor on the same day at 7-30 p. m. Medically examined Gul Zaman P. W. And found the following two injures:-
(1) A superficial lacerated wound 1" x 4" on the front of right ear.
(2) A contusion abraded 1" x i" on the top of right shoulder.
7. It may be mentioned here that the names of the accused are not mentioned in the F. I. R. And only their description has been given therein. The accused appeared before S. I. Nematullah (P. W.
12) on 16th April 19;0, who arrested them and sent them to Jail on 17th April 1970. The reason for not sending the accused to Jail immediately after their arrest was that the D. S. P. Had come to village Mohr Jung on 16th April 1970 for the verification of the case.
8. Mr. Muhammad Nawaz, Magistrate Second Class, Rawalpindi (P. W. 5) received an application Exh. P. T. On 18-4-74 bearing the order of the Assistant Commissioner (Exh. P. T./2) wherein he was directed to conduct the identification parade and he held the identification on the same day at 11 a.m. In the District Jail, Rawalpindi. Muhammad (P. W. 6) was called in first and he correctly identified Nigah Ali Shah and Channan Shah appellants besides Shabbir Shah and Muzammil Shah (acquitted accused). Muhammad Yaqoob (P. W. 7) correctly identified both appellants but not the other accused. Mst. Roshan Jan (P. W. 10) correctly identified both the appellants and none of the other acquitted accused. Wali Jan (P. W. 9) only identified Nigah Ali Shah appellant and nobody else.
9. The prosecution case against the appellants rests on the ocular evidence of Muhammadji (P. W.
6) a nephew of the deceased, Yaqoob (p. W. 7) and Gul Zaman (P. W. 8) sons of the deceased. Wali Jan (P. W. 9) belongs to the brotherhood of the deceased and Mst. Roshan Jan (P. W. 10) is the widow of the deceased, besides the identification parade as discussed earlier.
10. The appellants denied their guilt. Nigah Ali Shah appellant stated that he was shown to the witnesses when he appeared before the D. S. P. And so he was correctly identified in the jail by them. Both the appellants stated that they have been implicated on account of suspicion. They did not produce any defence.
11. I have heard the learned counsel for the appellants and the learned State Counsel. I have also gone through the evidence on record.
12. The learned counsel for the appellants contended that the appellants and acquitted accused were not named in the F. I. R. And that the identification parade was a farce in this case. I see force in this contention of the learned counsel for the appellants. It was frankly admitted by the counsel for the State that neither the appellants nor the acquitted accused were named in the F. I. R. And the accused, who was armed with a hatchet had a golden cover over his tooth. S. I. Nematullah (P.
W. 12) has admitted in his cross-examination that when the accused appeared before him none of the tooth of the accused had a golden cover on it. So the presence of Nigab Ali Shah appellant at the time of occurrence becomes highly doubtful. The eye-witnesses are related inter se and they are also related to the deceased as discussed earlier. There is no independent corroboration of their testimony. Moreover I find that Muhammadji (P. W. 6) has stated in his cross-examination that he did not remember if he stated before the committing Magistrate that when he produced Yaqoob, Mst. Roshan Jan and Wali Jan P. Ws. Before the D. S. P. The latter asked the Sub-Inspector to produce the accused and he was duly confronted with his statement where it is so recorded at portion D to D. He further stated that he did not remember if the Sub-Inspector only produced two or three prosecution witnesses before the D. S. P. And the rest were sitting outside and whether he stated so before the committing Magistrate but he was duly confronted where it is so recorded at portion E to E. He further stated that he did not remember if the witnesses were in the room when Sub-Inspector brought in two accused, namely, Nigah Ali Shah and Channan Shah and he did not remember to have stated so before the committing Magistrate, but he was duly confronted where it is so recorded at portion F to F. In view of this testimony of Muhammadji P. W. It is quite clear that both the appellants had been shown to the witnesses and the identification parade held by Muhammad Nawaz Magistrate 2nd Class (P. W. 5) was a farce. I also find that Muhammad Nawaz (P. W. 5) has stated in his cross-examination that Channan Shah appellant was having beard while Nigah Ali Shah appellant had a conspicuous nark on his right cheek because this fact was not pointed out by the appellants to him nor he made any note about that in his report. He has further dated that he cannot refute the suggestion that none of the under-trial prisoners was having beard though he had noted at the time of identification parade that Channan Shah appellant was having beard. He has further admitted in his cross-examination that Nigah Ali Shah appellant had objected that a day earlier in the morning the witnesses travelled with him I the bus and therefore they knew him. Even the learned Sessions Judge ad admitted in his judgment that the identification parade was not held directly according to the prescribed rules and it was due to the fact that the registrant had not properly gone through the prescribed rules and authorities on the subject.
13. In view of the above discussion the prosecution case against the Tenants becomes highly doubtful. I, therefore, accept this appeal, set ide the conviction and sentences of the appellants and acquit them. They all be released forthwith if not required in any other case.