MUHAMMAD AMIR MALIK, J.- Muhammad Amin (35), his brother Muhammad Akram (30), their father Allah Ditta (60/65), Zulfiqar (27/28), Mansha (35/36) the sons-in-law of Allah Ditta and Falak Sher (70/75), also their relative, were tried by Special Court No. 4 (Suppression of Terrorist Activities)
Lahore, for offence under Sections 302/324/337-A PPC. Vide judgment dated 29.9.1991 Muhammad Amin, Muhammad Akram, Zulfiqar and Falak Sher were convicted and sentenced as under:
1. Under Section 302/34 PPC.
Muhammad Amin: To death and a i.e of Rs. 50,000/- or in default thereof 5 years R.I.
Zulfiqar and Akram: Each imprisonment for life and a i.e of Rs. 50,000/- or in default thereof 5 years R.I.
Falak Sher: 10 years R.I.
2. Under Section 324/34 PPC. (For injuring Fiaz Haider PW. 13): Muhammad Amin, Zulfiqar, Muhammad Akram and Falak Sher: Each to 10 years R.I. And a i.e of Rs.
20,000/- or in default thereof 2 years R.I.
3. Under Section 324/34 PPC. (For injuring Muhammad Nawaz PW.14): All the four appellants: 10 years R.I. Each and a i.e of Rs. 20,000/- or in default thereof 2 years R.I.
Each.
4. Under Section 337-A/34 PPC. (For injuring Zafar Iqbal PW): All the four appellants: To i.e years R.I. Each.
All the sentences were ordered to run concurrently. No benefit under Section 382-B Cr.P.C, was granted. The i.e under Section 302/34 PPC if realised, was ordered to be paid to the heirs of the deceased as compensation.
Allah Ditta and Mansha accused were acquitted. The convicts have come up in appeal. Riaz Qaiser son of Haitam Ali deceased has also filed revision petition (Crl. Revision No. 686/91) for the enhancement of the sentences of Zulfiqar, Akram and Falak Sher appellants and against the acquittal of Allah Ditta and Mansha. The appeal and the revision petition are being disposed of by a single judgment.
2. The occurrence took place at 5.30 p.m. On 19.3.1991 in the street of Chak of the parties (Chak No. 32/4-L) in front of the house of Falak Sher appellant, at a distance of 5 kilo meters from Police Station Shah Bhor, District Okara. Riaz Qaiser (PW.12) made statement (Ex.PC) in Civil Hospital Okara at 9.15 p.m. The same day to Muhammad Aslam Inspector/S.H.O. (PW.15) and on its basis formal F.I.R. (Ex.PC/1) was registered at 10.00 p.m. By Manzoor Ahmad A.S.I. (PW.3).
3. The version in the F.I.R, was that the complainant was a resident of and primary school teacher in Chak No. 32/4-L. At 5.30 p.m. He along with his father Haitem Ali (the deceased) and brothers Fiaz Haider, Muhammad Nawaz (PWs. 13 and 14) and their brother-in-law Zafar Iqbal (not produced) while going to the house of Muhammad Nawaz for Aftari, were passing from in front of the house of Falak Sher (the appellant) wherefrom Muhammad Amin with a rifle, Muhammad Akram with kalashnikov Zulfiqar, Allah Ditta and Mansha with guns and Falak Sher carrying a sota appeared on the scene. Lalkara was raised by Allah Ditta to teach a lesson for initiating many cases against them. On this Muhammad Amin fired his shot at Haitem Ali hitting him on the front left chest followed by shot by Allah Ditta hitting Haitem Ali in the belly. He fell down. Muhammad Mansha fired his gun and hit Haitem Ali deceased in the left flank when he was lying on the ground. Zulfiqar fired two shots at Muhammad Nawaz hitting him in the left armpit and left flank. Falak Sher gave sota blows to Zafar Iqbal on various parts of the body. Amin also fired at Fiaz Haider hitting him in the right thigh and left side of abdomen. On the alarm raised, Shahbaz and Ahmad Hussain (given up PWs) also reached and witnessed the occurrence. All the accused carried Haitem Ali inside the house of Falak Sher where he expired.
4. It is in the F.I.R, that leaving Shahbaz and Ahmad Hussain PWs to guard the dead body the complainant had reached the hospital along with Fiaz Haider, Muhammad Nawaz and Zafar Iqbal, the injured.
5. The motive given was that Allah Ditta etc. Accused had reported a case under Section 307/326/325/148 PPC which was pending in Court. Mst. Sughran Bibi had also reported a case against Muhammad Amin etc. Under Zina Ordinance in which Muhammad Nawaz PW was a prosecution witness. In a case registered under Hadood Ordinance at the instance of one Riaz of the chak against Amin etc. Accused the complainant was a witness.
6. Dr. Ishtiaq Ali (PW.10) performed the post-mortem examination on the dead body of Haitem Ali on 20.3.1991 at 9.30 a.m. It was the dead body of a middle aged man clad in shirt, vest and chaddcr, all blood stained with mouth and eyes closed, post mortem staining and rigormortis present.
Following injuries were observed on the dead body:
1. A lacerated wound 4 cm x 2 cm margins were in-going. Wound was in-going and there was corresponding cuts to Kameez and Banyan and was located on the upper part of left chest just below left clavicle.
2. A lacerated wound 2 cm x 7 cm on the right side of fore-head skin deep 8 cm just near about left eye brow.
3. A lacerated wound 2 cm x cm in-going margins inverted located on left hypochondrium 11 cm above aumblicus. Wound was corresponding to kameez.
4. A lacerated wound 1 cm x cm margins out going (everted) wound in going corresponding to kamecz located right hypochondrium.
5. A lacerated wound 1 cm x 1 cm margins everted wound in going located on the back 3 cm right to the back bone.
Stomach was having diggested material and bladder contained 2 ounces of urine. Death was due to haemorrhage and shock caused by injuries Nos. 1,3,4 and which were sufficient to result in death in the ordinary course of nature. These were by i.e arm. Injury No. 2 was by blunt object. All were ante-mortem. The death was opined to be immediate and time between death and post mortem was stated to be within 28 hours, In cross examination the doctor informed that in his opinion the deceased had taken his last meals within 5 to 6 hours. Injuries No. 4 and 5 were the exit wounds, the former of injury No. 3 and the latter of injury No. 1.
7. Dr. Muhammad Saeed Sial (PW.9) medically examined Nawaz, Fiaz and Zafar Iqbal PWs at 8.30 p.m. Onward on 19.3.1991. Fiaz was having the following injuries:
(1) A lacerated wound 3 cm x 2 cm bone deep on the lateral and upper part of right thigh with swelling 12 cm x 10 cm with corresponding hole in the Shalwar.
(2) A lacerated wound 3 cm x 2 cm bone deep on the left side of lower abdomen with a corresponding hole in the shirt.
The injuries are by a lire arm shot within the duration of 6 hours. The injuries were advise x-ray.
Zafar Iqbal was having the following injuries:
1. A lacerated wound 3 cm x 1 cm x bone deep on left side of forehead 6 cm above left eye brow.
2. A lacerated wound 3 cm x bone deep on top and right side of head.
3. Multiple abrasions 3 cm x 1 cm on back and base of left middle finger.
4. Swelling 11 cm x 6 cm on back and lower part of right forearm.
The injuries were by blunt object and within a duration of 6 hours.
On the person of Muhammad Nawaz the injuries were:
(1) A lacerated wound 14 cm x 12 cm on front and upper part of left forearm and front lower part of left arm. The under lying bone and other structures were crushed.
(2) Multiple oval shape entry wound measuring an area of 18 cm x 10 cm on upper and lateral side of left chest. All injuries were bone deep.
(3) A lacerated wound 5 cm x 2 cm x bone deep on the left side of illiac region with under lying left illiac bone fractured.
The injuries were by i.e arm and within a duration of six hours. On the receipt of x- ray report metallic bullets in the left chest with metallic dust were pointed to be there. Metallic shadow of bullets in the right buttock with metallic dust in the left pelvic region was also observed. Left forearm had no bone lesion.
8. Dr. Mubashar Ahmad (PW.2) operated upon Muhammad Nawaz on the night of 19.3.1991. He gave an incision on the left side of axilla up to the left iliac crest along the track of bullet injury. The wound was tunnel type going downwards causing injury to the left hip bone. Almost front of elbow joint was devoid of mussles and the bones were packed in the area of 8" x 8" in jurying the radial nerve. In cross-examination he told that Mian Zaman M.N.A, was present with the injured and was apprised on the serious condition of the injured who was not fit to be shifted to Lahore for operation.
9. Muhammad Aslam Inspector (PW. 15) was the S.H.O, of the Police Station and investigated the case. On receiving the information of the occurrence he reached the civil hospital at Okara and recorded the statement of Riaz Qaiser (Ex.PC) which was sent to the police station for the registration of the formal F.I.R. He moved applications (Exs. PT, PU and PV) to the doctor inquiring whether Muhammad Nawaz, Faiz Ahmad and Muhammad Zafar were fit to make statements. The doctor opined that only latter was fit to make statement vide his reports (Exs. PT/1, PU/1 and PV/1).
After recording the statement of Muhammad Zafar he reached the spot. The dead body of Haitam Ali was lying in the courtyard of Falak Sher accused. He inspected the spot and prepared rough site-plan (Ex.PX). He recovered blood stained earth from inside the house of Falak Sher vide memo (Ex.PZ). He arrested Allah Ditta accused on 23.3.1991 and recovered a 12 bore gun (P.8) and two cartridges (P.9/1 & 2) vide memo (Ex.PH) at his instance. He recorded the statements of Faiz Haider and Muhammad Nawaz PWs in Mayo Hospital on 1.4.1991. On 24.4.1991 he arrested Akram, Zulfiqar, Mansha and Falak Sher accused. On 26.4.1991 Falak Sher got recovered sola (P.11) vide memo (Ex.PO). Muhammad Amin was arrested on 28.4.1991. On 1.5.1991 Mansha accused got recovered 12 bore gun vide memo (Ex.PQ) from his house. On that very day Zulfiqar led to the recovery of 12 bore gun (P.13) and 2 cartridges (P.14/1 & 2) from his house and were taken into possession vide memo (Ex.PR). On 5.5.1991 Muhammad Amin made disclosure and led to the recovery of 7 mm ride (P.15) alongwith its licence (P.16) and were secured vide memo (Ex.PS). On 7.5.1991 Akram got recovered kalashnikov (P.10) from his house vide memo (Ex.PJ).
In cross-examination he admitted that no blood was available either in the house of Falak Sher accused or in between points No. 1 and 13 of the site plan (Ex.PD) i.e. From the place of occurrence in the street to the place of the dead body in the courtyard. He was candid enough to say that the occurrence took place in front of the house of Shahadat son of Shamccr. There was no mention in statement (Ex.PC) of Riaz Qaiser recorded by him that any body had fired at him during the occurrence. Even during the whole of the investigation nobody else stated that Riaz Qaiser complainant was fired at. He frankly slated that he minutely inspected the spot where there were some minor drag marks in the street to the courtyard of the house of Falak Sher but this he did not mention either in the inspection note or in the site plans (Exs. PD, PD/1 and PY) as the same were not prominent. He also admitted that the place of occurrence was in the constituency of Mian Muhammad Zaman M.N.A, and Shafqat Labera M.P.A. The latter appeared before the S.P. During investigation. He denied that he was under the influence of said M.N.A, or M.PA. Who were supporting the complainant party. He admitted that the investigation was transferred to the S.P.
Crimes on the application of the accused on 4.1.1991 but again got transferred to him from the Crimes Branch through the influence of the above-mentioned M.NA.
10. The appellants and their acquitted co-accused all pleaded in their statements at the close of the trial that they had long-standing enmity and litigation with the complainant parly. The deceased and the injured witnesses had large number of enemies, the occurrence took place in the darkness of the night, the assailants could not be identified and that they were falsely involved.
11. It is admitted on the record that Allah Ditta accused and Hailem deceased were real brothers.
Riaz Qaiser, Fiaz Haider and Muhammad Nawaz (PWs 12 to 14) the injured witnesses, are the sons of the deceased. Zafar Iqbal injured (given up) is son-in-law of the deceased. Amin and Akram appellants and Mansha co-accused are the sons of Allah Ditta accused, Zulfiqar appellant is his son-in-law and son of Falak Sher appellant. The parties are therefore closely related.
However it is also an admitted and proved fact on the record that they have long-standing enmity and litigation inter-sc.
12. F.I.R. No. 28 (Ex. PE/2) was registered at Police Station on 25.2.1988 at the instance of Allah Ditta accused under Section 307/324/148/149 PPC against the deceased, his sons Nawaz, Fiaz and Riaz PWs and Nazar, a son of Falak Sher and in it Allah Ditta and Mansha accused and Muhammad Amin appellant were the witnesses. A case of zina was registered on 29.1.1991 at the police station at the instance of one Mst. Sughran Bibi against Muhammad Amin, Falak Sher appellants and Mansha co-accused in which Nawaz PW was a witness. A theft case was also registered on 19.2.1991 against Muhammad Amin appellant etc. In which Riaz Qaiser complainant was a witness. The learned trial Judge so correctly concluded that the parties were inimical towards each other, there was strong ill will, enmity and hostility between them before the occurrence.
13. The prosecution case rests upon motive, stated to by Riaz Qaiser complainant, ocular account given by Riaz Qaiser, Fiaz and Muhammad Nawaz PWs and the medical evidence.
14. Learned counsel for the appellants contended that the case primarily rested upon the ocular account of the occurrence which was furnished by interested and inimical witnesses, their version was in conflict with the medical evidence, their statements suffered from contradictions and improvements, the case of the appellants was just like their co-accused who were acquitted and there being no corroboration, the appellants deserve to be granted the benefit of the doubt.
Learned counsel for the Stated tried to support the judgment. After having heard them and been taken through the record we find much substance in the contentions raised.
15. As already concluded, the parties though closely related were inimical and on litigation since before the present occurrence. The two injured eyewitnesses namely, Fiaz and Nawaz and their brother Riaz Qaiser are real brothers and sons of the deceased. They, therefore, cannot be believed unless there is strong corroboration qua each of the appellants. No crime empty was recovered from the spot. Thus the recovery of the guns and kalashnikov even if believed would be of no avail to the prosecution. The ocular account also suffers from inherent contradictions and improvements. According to the F.I.R, and the statements before the police the deceased and the witnesses were proceeding from the house of the deceased to the house of Nawaz PW for 'Aftari'.
While critically appreciating the statement of Qasim Ali (PW. Ll) it appears that the house of the deceased is 4/5 acres on the East from the main chowk of the village abadi and the house of Nawaz is in the next street towards the West. The house of Falak Sher is further to the West by 2 streets. So the deceased and the witnesses while going to the house of Nawaz had no occasion to be near or in front of the house of Falak Sher or in the street in which his house is situated. This seems to be the reason that the witnesses made improvements at the trial by saying that they were proceeding from the Dera to the house of Nawaz. The version that all were going to have Aftari at the house of Nawaz is also belied by the medical evidence in as much as the deceased was having digested food and according to the statement of the doctor he must have taken his last meals 5/6 hours before the occurrence. This was tried to be utilised by the learned counsel for the appellants to argue that the occurrence might have taken place 5/6 hours after the Aftari and so in the darkness of night. This docs not appeal to us inasmuch as the injured witnesses were examined by Dr. Muhammad Saeed Sial (PW.9) at about 8.30 p.m. The time of Aftari on the day of occurrence according to the calendar seems to be about 6.00 p.m. The eye-witness account is further contradicted by the medical evidence. According to the F.I.R, and the version at the trial Allah Ditta accused is slated to have fired his gun and hit Haitem deceased in the abdomen and on the back. But according to the medical evidence there is an exit wound. Mansha accused is stated to have fired and hit Haitem deceased in the right flank (injury No. 4) but the injury is an exit wound. It is deposed that Zulfiqar fired his gun and hit Nawaz PW in the left flank but this injury is not by a gun inasmuch as that a bullet was recovered by the doctor. According to the F.I.R, and the statements at the trial the deceased after having been injured in the street was carried to the house of Falak Sher appellant but there was neither any trial of blood from street to the courtyard or to the house of Falak Sher nor any blood. Akram appellant is stated to be armed with a kalashnikov and hit Nawaz PW in the left arm but this injury, as per medical evidence can be said to be perhaps with a gun shot. So argument has been raised that the kalashnikov was tried to be foisted on one of the accused to bring the case within the jurisdiction of the Special Court and that too under the influence of Mian Zaman M.N.A, who was present with the doctor and did not allow the investigation by Crimes Branch. It was also strongly argued that had Riaz Qaiser complainant been present at the spot, the motive being against him there was no reason why he should not have been fired at and allowed to go scot free. It is also argued that the houses of the deceased and Nawaz PW being on the East of the alleged place of occurrence, in front of the house of Falak Sher appellant all the 8 accused could not have gathered while armed to pounce upon them/assault in the manner as stated by the witnesses. There could not have been any prior knowledge to the accused sitting at the house of Falak Sher that the witnesses alongwith the deceased would be proceeding from the house of the deceased to the house of Nawaz PW both being at sufficient distance on the East. In view of the inimical nature of the testimony of the three injured witnesses and there being contradictions in the eyewitness account with the medical evidence and the other factors as discussed above strong corroboration is required qua each of the appellant. But no such corroboration is forth coming on the record.
16. The upshot is that the appeal succeeds, the conviction and sentences of the appellants are nearby set aside, they are granted the benefit of doubt and acquitted of the charge. They be set at liberty forthwith if not required to be detained in any other case. Consequently the revision petition fails and stands dismissed in limine.