' JUSTICE ABDUL MAJID TIWANA (MEMBER--II).-Shahbaz Ahmad, Abdur Rehman, Nazeer Ahmad and Hafeez Ahmad, the appellants and their two co-accused, namely, Muhammad Ashraf (who died during the pendency of the trial) and Mahmood Ahmad absconder were sent up for trial for committing the murder of Zulfiqar Ali. On the conclusion of the trial, the learned Judge Special Court for Speedy Trial No, II, Lahore, vide his judgment, dated 22-12-1992, convicted the appellants under section 148, P.P.C. And sentenced them to three years' R.I. Each. He also convicted them under section 302(b)/149, P.P.C. And sentenced each of them to imprisonment for life as Tazir. They also directed them to pay a compensation of Rs,20,000 each to the legal heirs of Zulfiqar All (deceased).
2. The prosecution story is that on 30-1-1992 at 4-30 p.m. When Shahnawaz complainant accompanied by his brother Zulfiqar Ali (deceased) and their cousin Khalid Mahmood, was returning to their house in the Abadi of Chak No, 274/RB, District Faisalabad, from their field situated in Square No,102 of the said village and reached near the house of Muhammad Iqbal, the appellants and their co-accused i,e. Mahmood Ahmad absconder and Muhammad Ashraf (now dead) suddenly came out of the house of Hafeez accused. Mahmood Ahmad absconder was armed with rifle, Muhammad Ashraf co-accused with a "Chhura" while all the four appellants with guns. Coming out of the house, they raised "Lalkara" loudly challenging Shahnawaz complainant and Zulfiqar Ali (deceased) that they would not allow them to go alive. Soon after Mahmood Ahmad absconder fired a shot from his rifle, hitting Zulfiqar Ali (deceased) on the left buttock as a result of which he fell down. When he was lying injured, Muhammad Ashraf co-accused inflicted Chhura blow on his right jaw, while the appellants who all were armed with guns, gave him butt blows on his head, neck, face and chest. On account of these injuries, the victim died on the spot.
The assailants in jubilation fired shots in the air. Then they lifted the dead body of Zulfiqar Ali and removed the same to the nearby house of Hafeez Ahmad and leaving it in the courtyard, ran away with their weapons. Besides Shahnawaz complainant and Khalid Mahmood, P.W. The occurrence was also witnessed by Imtiaz and Ghulam Sabir P.Ws.
3. Leaving the dead body under the care of his aforesaid companions, Shahnawaz complainant went to Police Station Dijkot where he lodged the report on the same day at 6-30 p.m. The motive for the crime, as alleged by him, was that on 17-7-1991 Nasir son of Nazir Ahmad was murdered at his Dera during the night and his father blamed Shahnawaz complainant and his three brothers including Zulfiqar Ali (deceased) for the murder. They were, however, found innocent in the investigation and the case was cancelled. It was on account of this grievance that Zulfiqar All was killed.
4. S.I. Abdul Razzak (P.W.8), after the registration of the case, went to the place of occurrence and found the dead body lying in the courtyard of Hafeez accused. He prepared its injury statement and inquest report and despatched the same to the mortuary for post-mortem examination under the escort of F.C. Muhammad Nawaz. He recovered blood-stained earth from the spot where the occurrence had taken place and seized and sealed it. He prepared the rough sketch of the spot.
Later he got prepared the site plan from the draftsman. The investigation was then taken over by S.I. Ejaz Mahmood (P.W.9) on 23-2-1992. He arrested the appellants on 9-3-1992 and Ashraf co- accused on 14-3-1992. The investigation was then further transferred to Inspector Mukhtar All (P.W.10) of Police Station Chak Jhumra under the orders of Superintendent of Police, Faisalabad. He took over its investigation on 19-3-1992 and challaned all the six accused to the Court after getting Mahmood Ahmad co-accused declared absconder.
5. On the commencement of trial the appellants and Muhammad Ashraf co-accused were charged for the murder of Zulfiqar Ali and on their pleading not guilty, the prosecution led evidence against them by producing as many as 11 witnesses. To be a little more precise, Dr. Zahid Hussain (P.W.1), who had conducted post-mortem examination on the dead body of Zulfiqar Ali on 31-1-1992 at 11-00 a.m., found the following injuries on his person:---
(1) A lacerated wound 2-1/2 c.m. x 1/2 c.m. x bone deep on right side of head 8 c.m. From right ear pinna, 6-1/2 c.m. Below the mid line of head.
(2) A lacerated wound 3 c.m. x 1 c.m. Into bone deep with contusion mark 5 c.m. x 4 c.m. Around the wound, right side of forehead, 1-1/2 c.m. From mid line.
(3) A lacerated wound 2 c.m. x 1 c.m. x bone deep on right eye-brow.
(4) An incised wound 2-1/2 c.m. On right mendibular region 4 c.m. From right angle of mouth, 7 c.m.
From right ear lobule.
(5) A contused swelling 6 c.m. x 5 c.m. On right cheek.
(6) A contusion mark 3 c.m. x 1/2 c.m. On right side of neck middle part.
(7) An abrasion 3 c.m. x 2 c.m. Back of right scapular region.
(8) An abrasion 1 c.m. x 1/2 c.m. On bridge of nose.
(9) A fire-arm wound of entry 3/4 c.m. x 1/2 c.m. DNP with inverted margin oval in shape on outer side of left buttock upper part 14-1/2 c.m. From anal groove, with wound of exit 4 c.m. x 2-1/2 c.m.
With everted margins on front of right thigh upper most part. Corresponding holes were present on Qameez and Shalwar which were blood-stained.
6. On dissection, under injury No,2 frontal bone of the skull was found fractured and clotted blood was present in right hemisphere of the brain. Under injuries Nos.2 and 3 frontal bone of the skull was found fractured and blood present in right hemisphere of the brain. Under injury No,4 mandible underneath was noticed cut through and through and the weapon penetrated up to pharynx.
Under injury No,9 bullet passed through the muscles of the left buttock, perforated the rectum through and through, ruptured the femural vessels of right side and exited through the right upper most part of the front of left thigh. Rest of the injuries were found simple having been caused by a blunt weapon.
7. In the opinion of the doctor the death had occurred due to intracranial haemorrhage and shock on account of injuries Nos. 2, 3, 4 and 9 which in the ordinary coy -se of nature were sufficient to cause death, individually as well as collectively, as they were grievous in nature. Injury No,4 was caused by a sharp-edged weapon, injury No,9 by a fire-arm and the rest with a blunt weapon. The probable time between the receipt of injuries and the death was within half an hour and between the death and post-mortem examination about 18 hours. He proved the post-mortem report (Exh.P.C.) and the diagram of injuries (Exh.P.C./1).
8. Shahnawaz complainant (P.W.2) and Imtiaz Ahmad (P.W.3), gave the eye-witnesses account.
Their testimony finds reflection in the above narration of the prosecution story and the same shall be subjected to detailed appraisal, where necessary, in due course.
9. S.I. Abdul Razzak (P.W.8), S.I. Ejaz Mahmood (P.W.9), Inspector/S.H.O. Mukhtar Ali (P.W.10) and S.I.
Nisar Ahmad (P.W.11) gave the details of the investigations. The part played by each of them as Investigator had already been outlined.
10. F.C. Muhammad Nawaz (P.W.4), H.C. Rafi Ullah (P.W.5), F.C. Abdul Rehman (P.W.6) and Aurangzeb Draftsman (P.W.7) were the formal witnesses and their testimony needs no detailed consideration.
11. On the completion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. As Muhammad Ashraf co-accused was killed during the trial and Mahmood Ahmad co-accused remained absconder. The appellants denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication on account of enmity, professed innocence. They, however, did not produce any evidence in their defence.
12. On the conclusion of the trial, the appellants by the judgment now under challenge, were convicted and sentenced in the manner aforesaid and aggrieved by it they came up in appeal.
13. It was argued on behalf of the appellants that there was blood-fued between the parties and the prosecution could not produce Ramzan, an independent eye-witness, and as such no reliance could be placed on the testimony of Shahnawaz complainant (P.W.2) and his brother Imtiaz Ahmad (P.W.3) without independent corroboration which was altogether lacking in this case; that the occurrence took place somewhere dui ing the night and it remained unwitnessed; that if the appellants had dragged the dead body from the spot to the house of Hafiz appellant as alleged by the prosecution, they would not have allowed the complainant party to come near it soon after the occurrence; that if the appellants were armed with guns and still they did not fire at the deceased and only gave him butt blows, there was no intention on their part to kill him; that the sharp-edged injury on the mendible of the deceased was attributed to Muhammad Ashraf co-accused, who was killed by his adversaries during the trial, and the fire-arm injury on his buttock was attributed to Mahmood Ahmad co-accused who is still an absconder; and that the deceased and his father had many enemies in other villages and there was a possibility of his having been murdered by someone else.
14. The learned counsel appearing on behalf of the State tried to support the judgment of the trial Judge by contending that the presence of the dead body in the house of Hafiz appellant, from where it was collected by the first Investigating Officer, by itself was a proof of the complicity of the appellants and their co-accused in committing the murder and they were rightly convicted and sentenced by the learned trial Judge.
15. The prosecution case from the very inception has been that Muhammad Ashraf co-accused (since dead) had caused incised wound on the mendible of the deceased and Mahmood Ahmad absconding accused had caused fire-arm injuries on his buttock. The former was killed by his opponents during the trial and the latter is still absconding. There was serious animosity between the parties and it was difficult to place implicit reliance on the testimony of Shahnawaz complainant (P.W.2) and his brother Imtiaz Ahmad (P.W.3) without independent corroboration which was lacking. Muhammad Ramzan P.W. Who was also one of the eye-witnesses in this case and apparently was an independent one, could not be produced at the trial. The occurrence took place in the street as the blood-stained earth was collected by the Investigating Officer from there but the dead body was found lying in the house of Hafiz appellant from where it was lifted by the police and sent to the mortuary. Its presence in the house of Halm, however, remained a riddle. It could possibly be an attempt on the part of the killers of Zulfiqar Ali (deceased) to make out a case of self-defence but in the absence of any evidence to that effect, it could he only a geuss-work.
The allegations against the appellants, including Hafiz were that they had caused some injuries to the deceased with the butts of their respective guns after he had been hit by the gun fire of Mahmood Ahmad absconding accused and was lying injured on the spot. If they were armed with guns and used only their butts, obviously there was no intention on their part to kill him, or then they were not so armed and the prosecution made a wrong attribution to them. In any case, the prosecution had to stand on its own legs and had to produce reliable evidence of independent character to prove the guilt of the appellants beyond any shadow of doubt but it could not adduce the evidence of that standard. Therefore, the benefit of doubt has to be extended to the appellants.
16. In view of the above, the appeal is accepted, the conviction and sentence of the appellants are set aside and they are acquitted. In case they are in Jail, they should be set at liberty if not required in any other case.