' SHAMEEM HUSSAIN KADRI, J.--The nine appellants alongwith one Lalu absconder are accused of the murders of Abdul Sattar, Chakar and Shamira which took place on bridge Rajbah on 12th August 1969, at 6 p.m. Within the precincts of Chak No, 102, E. B. Police Station Gaggu. District Sahiwal. Report (Exh. P. G.) was lodged by Allah Yar (P. W. 7), brother of Abdul Sattar deceased at 9 p.m. The same day which was recorded by Sub-Inspector Faiz-ul-Hassan (P. W. 17). The appellants were tried and convicted by the learned Additional Sessions Judge, Sahiwal, on 30th November 1971. All of them were convicted under section 148, P. P. C. And sentenced to three years' R. I. Rajba, Zahur Mohd. And Nascer were also convicted under section 302/149, P. P. C. And sentenced to death while the others were sentenced to transportation for life under section 302 read with section 149, P. P. C. All of them were fined Rs, 500 each or in default of payment of fine to undergo R.
1. For six months. The appellants have filed Criminal Appeal No, 885 of 1971 against their convictions and sentences. Allah Yar has filed Criminal Revision No, 236 of 1972 praying that the sentence of appellants 5 to 9 be enhanced to death and for grant of compensation to the heirs and dependents of the deceased. The murder reference, the appeal and the revision are disposed of together by this judgment.
2. Out of the appellants Basara and Satter accused are real brothers. Zahur, Allah Ditta, Muhammad, Hammad and Nazir are also real brothers. Zahur and his brothers are the maternal uncle of Basara and Sattar accused. Rajba and Samar are the sons of the real paternal uncles of Basara accused. Lalu absconder is a friend of Basara and Sattar accused. He was also their tenant.
He used to cultivate the land of their father.
3. There were five witnesses of the occurrence out of whom three persons, namely, Allah Yar (P. W.
7) Karam All (P. W. 8) and Qutba (P. W. 9) have been produced at the trial. Dara son of Inayat and Ahmad Yar who are mentioned as eye-witnesses in the F. I. R. Were not produced. Dara was brother-in-law (hamzulf) of Shamira deceased while Ahmad Yar was brother-in-law (hamzulf) of Allah Yar (P. W. 7). The former was given up as unnecessary while the latter was not produced as having been won over. Allah Yar (P. W. 7) is brother of the deceased Abdul Sattar. Karam Ali (P. W.
8) is maternal uncle's son of Allah Yar and Abdul Sattar. Qutba (P. W. 9) is also maternal cousin of the said Allah Yar and his deceased brother Abdul Sattar. The accused were arrested by Nauroze Khan A. S. I. (P. W. 12) on 1 ith August 1969. He became Prisoner of War in India and his statement recorded before the C. M. Was transferred to the Sessions file under section 33 of the Evidence Act.
4. On 16th August 1969, gun (P. 1) was recovered at the instance of Rajba from Chak No, 106 E. B. Vide memo. Exh. P. A. Blood-stained hatchet (P. 2) was recovered at the instance of Sattar from the same village vide memo. P. B. Pistol (P. 3) was recovered from Zahoor from Chak No, 165-A vide memo. P. C. Blood-stained hatchet (P. 4) was recovered at the instance of Allah Ditta from Chak No, 165-A P. L. Vide memo. P. D. Rifle '303 (P. 5) was recovered at the instance of Muhammad from the same Chak vide memo. P. E. Another licensed rifle 7 MM (P. 6) of Naseer was recovered vide memo. Exh. P. F. From the same Chak. These recoveries were made by Faiz-ul-Hassan S. I. (P. W. 17) in the presence of Sajwara and Farid (P. W. 10). The former was not produced. On 13th August 1969, two empty cartridges Exh, P. 16/1-2 of 7 MM rifle; three empty castridges (P. 15/1 to 3) of '303 rifle and five empty cartridges (P. 14/1 to 5) of .12 bore gun were recovered from the spot by Faiz-ul-Hassan S. I. In the presence of Allah Yar (P. W. 7) and Ch. Nazir Ahmad Lambardar of Chak No, 102 E. B. The latter was not produced. These recoveries were effected vide memo. Exh P. J. On the same day the Sub-Inspector took into possession two phials (P. 12/-12) containing cork and two pellet peices which were recovered from the body of Abdul Sattar alongwith banyan (P. 10) of Chakar, one phial (P. 11) containing of 8 pellets recovered from the body of Shamira deceased, blood-stained kurta (P. 9) of Shamira, his chaddar (P. 8) and a pair of shoes (P. 7/1-2). These articles were taken into possession vide memo. P. K. In the presence of Allah Yar, Muhammad Shafi Constable (P. W. 15) and Ch. Nazir Ahmad Lambardar. On 14th August 1969, one Ali Muhammad diver recovered shirt (P. 13) from Pakpattan Canal in the area of Chak No, 102/E. B. At the instance of Allah Ditta accused which was taken into possession vide memo. Exh. P. L. In the presence of Allah Yar (P. W. 7). Ali Muhammad of Kamalia, District Lyallpur, and Ch. Nazir Ahmad Lambardar. The latter two were not produced at the trial. It is mentioned in the memorandum that this banyan belongs to Allah Ditta. But Nauroze Khan A. S. I., (P. W. 12) has admitted in cross-examination before the C. M. That in the memo.
Pointation of Allah Ditta is not recorded. He also admitted that statement of Nazir Ahmad P. W. Is not as to the identification of shirt (P. 13). He also did not know if Pakpattan Canal is different from Lower Bari Doab Canal. He also did not locate the point of recovery in the said memo.
5. Dr. Muhammad lqbal (P. W. 1) performed autopsy on the dead body of Sattar on 13th August 1969 at 2-30 p.m. He found seven injuries on his person. Injury No, 1 was multiple incised wound. The neck was cut completely. Injury No, 2 consisted of three incised wounds on the front and back of right shoulder. Injury No, 3 was an incised wound on the back of upper part of left chest. Injury No, 4 related to two incised wounds on the front of left shoulder. Injury No, 5 was a lacerated wound 11" x 1" on the outer side of the lower part of right chest. Margins of the wound were charred and inverted (wound of entry). Injury No, 6 was a gunshot lacerated wound I x 1', on the outer side of the right abdomen near the iliac crest through which a portion of the greater omentum was coming out.
The margins were charred (wound of entry). Injury No, 7 related to five gunshot lacerated wounds I" x f" on the back of right chest. Under injury No, 7, 8th, 9th and 10th ribs were fractured. Stomach was healthy and half full of semi-digested food. Seven corks were found from the abdominal cavity which were sealed. The pellets in one cluster after entering the abdomen through wound No, 5 injured the absconding colon then through the liver entered the chest fracturing the ribs on the back and went out through injury No,
7. The bullet after entering the abdomen through injury No, 6 ruptured the intestines alongwith the mesenteric vessels and entered the iliac bone on the opposite side fracturing it, broke into two pieces then lodged into it. The bullet in two pieces was removed and sealed. In the opinion of the doctor the deceased died as a result of shock and haemerrhage on account of injury to the vital organs due to injuries Nos. 5 and 6, having been caused by gun fire from a distance of less than four feet and fired from the right side of the deceased. Injury No, 7 was exit wound. Injury No, 1 was post-mortem injury while the rest were ante- mortem. Injuries 1 to 4 had been caused by sharp-edged weapon like kulhari. Injuries 5 and 6 were either individually or collectively sufficient to cause death in the ordinary course of nature.
6. The same day at 4 p.m. This doctor performed post-mortem examination on the dead body of Chakar and found seven injuries. Injury No, 1 was multiple incised wound at the lower part of the neck cutting away the neck. Injury No, 2 was gunshot lacerated wound f' x f" on the front of abdomen below the umbiliucus (exit wound of No, 4). Injury No, 3 was a gunshot lacerated wound If' x I" on the front of the right abdomen at the right iliac fossa through which intestines were coming out. There was no charring of the wound and it was the wound of entry. There was corresponding mark on the banyan. Injury No, 4 was gunshot lacerated wound lf' x 1" on the outer side of right chest. Injury No, 5 related to two gunshot wounds f" x f" on the back (wound of exit). Injury No, 6 was an incised wound 4" x 1' on the front of upper part of left thigh. Injury No. 7 was gunshot lacerated wound 5" x 2f" on the outer side of upper part of left thigh. The head and neck were absent. The bullet after entering the abdomen through injury No, 3 ruptured the ascending colon and struck against the vertebral column and fractured the 9th and 10th thorax vertabra, broke into two pieces, fracturing 9th and 10th ribs which went out through injury No,
5. The bullet after entering the abdomen through injury No, 4 injured the large intestines alongwith the mesenteric vessels fracturing 11th and 12th thorax vertebra which broke into pieces. One piece went out through injury No, 2 and then struck against the left iliac bone fracturing through it tired the mussels and went out through injury No,
7. In his opinion injuries 3 and 4 were individually and collectively sufficient to cause death in the ordinary course of nature. Injury No, I was a postmorten injury and was caused by sharp-edged weapon. Injury No, 6 was ante-mortem. Rest of the injuries 2 to 5 and 7 had been caused by gun fire, fired at a distance of more than 4 feet and from the right side of the deceased.
7. The same day at 5.30 p.m. The doctor performed autopsy on the dead body of Shamira and found these injuries; (1) Eight gunshot lacerated wounds on the right side of the abdomen. There were corresponding lacerated marks on the kurta and chaddar. There was no charring of the wounds (wound of entry), (2) Gunshot lacerated wound xr on the back of the left wrist (wound of entry), and (3) gun shot lacerated wound on the inner side of the palm of left band (wound of exit)
Eight bullets were found from the abdominal cavity. The bullets through injury No, 1 entered the abdomen, lacerating the ascending colon and large intestines at many places and mesentery with its vessels entered the left psoas muscles in the abdomen and got lodged five of them and three found from the abdominal cavity. The bullet after striking through injury No, 2 passed out under the skin through injury No,
3. In the opinion of the doctor injury No, 1 was sufficient to cause death in the ordinary course of nature.
8. Sh. Muhammad Din Examiner Firearm Forensic Science Laboratory, Lahore (P. W. 2) produced the examination report (Exh. P. Q.). He opined that .12 bore crime empties marked C-1 to C-3 were found to have been fired from .12 bore shot-gun Exh. P.
1. The two .12 bore crime empties marked C-4 and C-5 (Exh. P. 14/1-2) were found to have been fired from .12 bore country-made pistol Exh. P.
3. Two seven M M crime empties C-6 and C-7 (Exh. P. 16/1-2) were found to have been fired from seven M M rifle No, 2435 (Exh. P. 6). Three '303 bore crime empties C-8 to C-10 (Exh. P. 15/1-3) were found to have been fired from 103 bore rifle Exh. P.
5.
9. Shahamand (P. W. 3) father of deceased Abdul Sattar when questioned about the relationship of Farid stated "I do not know if the wife of my brother-in-law Jhanda is the sister of Farid P.W". He admitted that Shamira deceased and Dara P. W. Were married to the two daughters of Muhammad. He also expressed ignorance if a case under section 304, P. P. C. Had been registered against his son Abdul Satter deceased. Nur, Muhammad Yaqub and Allah Yar at the instance of Ahmed Din son of Muhammad Din resident of Chak No, I06/E. B. Ho however, admitted that about 5/6 years back one Raj Muhammad weaver of his Chak was murdered and in that case his son Yaqub was challaned. Muhammad Rafiq Patwari (P. W. 6) prepared the site plans (Exhs. P. M., P. M./1 and P. M./2) at the instance of the police. He admitted in cross-examination that there are dharis on the northern side of the place of occurrence. These are at a distance of eight killas from the place of occurrence. The road which runs near the place of occurrence goes upto Chak No, 102, E. B.
There is a distance of about four kanals between the place of occurrence and the graveyard. He stated that the Sub-Inspector was present when the witnesses pointed out the places to him at the spot. He was acting at the instance of the Sub-Inspector. He admitted that whatever points the S. I.
Had pointed out to him he had shown them in the site plans. He further admitted that after preparation of the site plans he had added the words "mukhtlif jaga sal destyab hoot", (found from different places), in Note No, 4-A at the instance of the Sub-Inspector. He had not seen the empty cartridges recovered from the spot. Islam-ud-Din F. C. (P. W. 14) stated that he was posted at police Station Gaggu in August 1969. On 15th August 1969, Zulfiqar Ali Moharrir A. S. I. Delivered to him four sealed parcels relating to this case for onward transmission to Lahore. He then obtained the necessary docket from S. P's office and delivered three parcels in the office of the Chemical Examiner and one in the Forensic Science Laboratory Lahore intact. He, however, did not know the date on which he delivered the said parcels in these offices. He stated that he had to return from Lahore because of a defect in the docket. He again obtained the docket and went to Lahore for delivering the said parcels. A holiday had also intervened. In cross-examination he stated that he did not remember as to whether he kept the parcels with him for five days. He admitted that he had not made any report either at Sahiwal or Lahore in respect of his arrival or departure. He denied to have made a statement before the C. M. That he had played no other part in the investigation of this case except that he had escorted the dead bodies. He was confronted with his statement before the C. M. Where it was so recorded in portion A to A. Muhammad Shafi F. C. (P. W.
15) stated that on 20th August 19n9 the Moharrir A. S. I. Handed over to him seven sealed parcels relating to this case for onward transmission to Lahore. He obtained the necessary docket and on 22nd August 19b9, he delivered three sealed parcels in the office of the Chemical Examiner and the remaining four in the office of Forensic Science Laboratory in tact. He admitted in cross- examination that he remained at Police Station on 15th August 1969 but on the following day he again accompanied the Sub-Inspector to Chak No, 106, E. B. And then to Chak No, 166-A/9-L. Islam- udDin F. C. Had also joined the investigation and was with him. On 16th August 1969 there were Islam-ud-Din and Ghulam Hassan F. Cs. With him. He was confronted with his statement before the C. M. About the sealing of parcels of weapons at the Police Station which he denied at the trial. This fact was recorded in his statement before the C. M. Altaf Hussain Officiating Head Clerk Central Jail, Sahiwal (P. W. 16) produced interview Register of the condemned prisoner from 30th July 1969 to 21st October 1969 of the Central Jail, Sahiwal. He stated that the names of the visitors are entered in this register who interview the condemned prisoners. According to him only one visit can be made during a week. This register shows that on 12th August 1969 Chakar, Sattar, Shamim and Karam residents of Chak No, 106 Police Station Gaggo, District Sahiwal, had interviewed Yaqub condemned prisoners. The register according to him remains in his custody. Each visit is verified by the Assistant Superintendent and the Deputy Superintendent Jail and is countersigned by the Superintendent Jail. The relevant entries are Exh. P. W. 16/1. He deposed that application (Exh. P. W. 16/2) was received in the Jail for supplying the copy of the entries about the visit of Chakar and others on 12th August 1960. This application bears the report signed by Ch. Muhammad Yaqub Assistant Superintendent Jail dated 13th October 1970 which is Exh. P. W. 16/3. Another report dated 12th January 1971 by the same officer is Exh. P. W. 16/4. Copy of the relevant entries (Exh. P. W. 16/3) was supplied to Allah Yar on 13th January 1971. In cross-examination he stated that the application was received in Jail on 16th September 1970 which was sent by a Magistrate by the name of Muhammad Aslam. A report was despatched to the Magistrate on 13th October 1910 by Ch. Muhammad Yaqub Assistant Superintendent Jail to the effect that at that time the register was not traceable. He, however, deposed that he could not state as to when the register in question was traced out. He was posted in Central Jail. Sahiwal in October 1970. He said that he could not say whether actually an interview took place or not. According to him Sahiwal Jail is provided with a double gate. Besides the outer main gate there is an inner main gate. After crossing the inner main gate one goes into the Jail compound. A gate book is also maintained, entries are made in the gate book of all the visitors who enter the Jail compound with the time of their arrival as well as the time of their departure, the condemned prisoners are interviewed in their cells. One will have to pass through the inner main gate in order to have an interview with the condemned prisoners. The condemned cells are situated in an enclosure of which there are two doors with shutters. P. W. 17 Faiz-ul-Hassan Sub-Inspector is the Investigating Officer. He admitted in cross-examination that nobody had pointed out to him the empties at the spot. He admitted that he had not mentioned in the inspection note nor in the site plans the distance between the place where the dead bodies were lying and the places where the empties were recovered. He admitted that he had not mentioned the presence of the empties in the inquest reports of the deceased persons. He also admitted that Exh. R. J. The memo pertaining to the recovery of the crime empties is the only memo which does not show the use of seal with the words "F. H", which he had used on the other parcels.
He also admitted that the words "mukhtlif jaga sat dastyab hooi" appearing in Note No, 44-A of the site plans were not written by the Patwari at his instance. He had not instructed the Patwari to mention the words "chart" and "photo" in Note No, 5 of the site plans. He did not verify the facts from the Central Jail Sahiwal that the deceased persons and Karam All P. Ws. Had visited the Jail on the day of occurrence. He also admitted that during the investigation it was found that Qutba, Allah Yar and Dara P. Ws. Had a chance meeting with the deceased persons Karam Ali and Ahmad Yar P. Ws.
At the bridge of 2 B. R. He did not go to Sheikh Fazil to verify the fact that Allah Yar, Qutba and Dare.
P. Ws. Had paid a visit there on the day of occurrence. He did not make any respectable person or residential of Chak No, 165-A/9-L to join the investigation on the day when the recoveries were effected. He. However, stated that he tried to make them join but no body turned up. However, he did not make a note of it in the zimnis. P. W. 5 Falak Sher father of deceased Chakar admitted in cross-examination that there are Dharis towards the north of place of occurrence but he did not know whether they belong to Gujjars. Towards the south of place of occurrence is a road.
Graveyard is at a distance of about a killa or If. He denied that any Malang used to live in the said graveyard. Farid (P. W. 10) the only recovery witness is neither Lambardar nor a B. D. Member. He belongs to Chak No, 106/E. B. Whereas he took part in the recoveries effected in Chak No, 165-A/9-L.
He admitted that there are three Lambardars in Chak No, 165-A/9-L. There are two Lambardars of his Chak. We know that Nazir Lambardar had witnessed some of the recoveries but he has not been produced. Although Farid has denied his relationship but from cross-examination of various witnesses we are of the view that he tried to hide his relationship with the complainant party. We are not persuaded to rely on his testimony. The only other witness of recovery is Mr. Faiz-ul-Hassan Sub-Inspector. The learned trial Judge has disbelieved the recoveries of empties from the spot. The evidence of this witness leaves us with no doubt that he planted the empties. He has not mentioned the empties in the inquest reports and has not put his own seal F. H. On the solitary parcel prepared under memo. P. J. He contradicted Muhammad Rafiq Patwari (P. W. 6) who stated that the words "mukhtllf jaga sal dastyab hooi" appearing in Note No, 4 of the site plans were written at the instance of the Sub-Inspector. He also mentioned the words 'char!' and 'phote in Note No, 5 of the site plan. If this witness was capable of creating false evidence in regard to the recoveries of empties we are afraid we cannot rely on his testimony. The recoveries are, therefore, not helpful to the prosecution case.
10. Dealing with the oral testimony we are not inclined to believe that Allah Yar was present at the spot, for, he was tried alongwith Muhammad Yaqub the condemned prisoner for the murder of Sardar. The three deceased were not concerned in either way in the murder of Sardar. Allah Yar had been acquitted from the charge of murder of Sardar, while Muhammad Yaqub was sentenced to death by the Sessions Judge. The eye-witnesses have deposed that the appellants had encircled them. It was an hour before sunset. Therefore, if Allah Yar had been there he could not have been spared by them and he should have been their first target. He alongwith Qutba and Dara had gone to Sheikh Fazil to purchase a buffalo. In the F. I. R. And police statements of witnesses the name of Muhammad Zahid Chishti from whom Qutba wanted to purchase the buffalo was not mentioned. This fact was not even mentioned before the C. M. It is strange coincidence that these persons met the deceased and Karam Ali (P. W. 8) on the bridge at the same time when they arrived there after interview with Muhammad Yaqub. If the presence of Allah Yar is not believed at the spot Qutba's presence also becomes doubtful. Dara has not come forward to support the prosecution case. We are not inclined to believe that Karam Ali had interviewed Muhammad Yaqub in Sahiwal Jail on the day of occurrence. The appellant was summoned by the Magistrate at the instance of the complainant. This register does not bear any page numbers and the serial numbers are started over again thrice. It remained untraceable for a long period. We are inclined to hold that this register has been prepared to suit the prosecution case at the instance e.f the complainant party. The act of the Jail authorities is highly condemnable, for, we know that the Sub-Inspector had obviously failed to get any clue of the interview. Had he found so he should have taken into his possession the register during the investigation. All the three witnesses are close relations of the complainant party and are enemies of the appellants. No relian can be placed on such a testimony. Allah Yar is brother of decease Abdul Satter, Karam Ali (P. W. 8) is maternal cousin of Allah Yar and Abdul Sattar deceased. Qutba (P. W. 9) is their maternal cousin.
11. The occurrence has taken place on the road and near the abadi of Chak No, 102/E. B. There are crops nearby. The cultivators normally go back to their villages alongwith their cattle and fodder at that time. It is strange that no independent witness has come forward to support th prosecution version.
12. The eye-witnesses account also contradicts the medical evidence, Lalu absconder and Naseer had gun and rifle respectively. According to the eye-witnesses they fired at Chakar. Gunshot injuries on the person of Chakar are probably the result of fire from .12 bore gun. Similarly Muhammad and Naseer appellants who had rifles attacked Abdul Sattar. The fire-arm injuries on the person of Abdul Sattar seen to have been inflicted by fire of .12 bore gun. Learned counsel for the appellants vehemently argued that the ocular testimony being in contradiction with the medical evidence obviously it goes to show that the eye-witnesses were not present at the spot and had not seen the occurrence. We are inclined to agree with his submission.
13. The motive disclosed by Allah Yar (P. W. 7) is that he alongwith Yaqub condemned prisoner murdered Sardar Muhammad. The appellants have avenged the murder of Sardar who was real brother of Sattar and Basara appellants. We have already discussed that if this was the motive the three deceased persons, who were not concerned at all in the murder of Sardar, could not be preferred by the appellants over Allah Yar, the acquitted accused from the charge of murder of Sardar.
14. The appellants have denied their participation in the crime and have alleged that they have been implicated on account of enmity and suspicion. There is evidence of Shahamand that his son Yaqub was involved in the murder of Raj Muhammad Weaver although he denied that there was a case against Abdul Sattar deceased, Nur Muhammad and Allah Yar under section 304, P. P. C. At the instance of Ahmad Din a Bhatti resident of his Chak. Therefore, there were other enemies of the deceased, as well.
15. For the foregoing reasons we are of the view that the prosecution has failed to bring home guilt to the appellants. Their convictions and sentences are set aside and they are acquitted.
' In view of their acquittal the revision petition is dismissed.