' AUSAF ALI KHAN, J.--- Sajjad (31 years), Muhammad Arif (19 years), Haq Nawaz (37 years), Yaqub (26 years), (all real brothers) alongwith their servant Muhammad Iqbal (28 years) appellants were convicted under sections 302, 307, 353, 148/149, P.P.C. And sentenced by the learned Additional Sessions Judge, Jhang vide judgment, dated 11-5-1991 as under:--
(i) Sajjad, appellant under section 302, P.P.C. To death.
(ii) Muhammad Arif, Haq Nawaz, Yaqoob and Muhammad Iqbal under section 302/149, P.P.C. To imprisonment for life each and a fine of Rs,25,000 each including Sajjad appellant or in default of payment of fine further imprisonment for five years' R.I. Each. They were also ordered to pay Rs,25,000 each as compensation to be paid on recovery to the legal heirs of the deceased or in default thereof further R.I. For six months each.
(iii) All the appellants under section 307/149, P.P.C. To five years' R.I. Each and to pay a fine of Rs,2,000 each or in default thereof further R.I. For one year each, under section 148, P.P.C. To three years' R.I. Each and a fine of Rs,2,000 each or in default thereof six months' R.I. Each, under section 353/149, P.P.C. To two years' R.I. Each and a fine of Rs,2,000 each or in default thereof six months' R.I.
Each. All the sentences of imprisonment were ordered to run concurrently. The appellants were also granted the benefit of the provisions of section 382-B, Cr.P.C.
' Vide the aforesaid judgment the co-accused and father of the appellants Ghulam Farid was acquitted of all the charges. The convicts have filed appeal (Criminal Appeal No,597 of 1991) against their convictions and sentences while the learned Additional Sessions Judge has sent a Reference for confirmation of the death sentence awarded to Sajjad appellant (Murder Reference No,249 of 1991). Both these matters are proposed to be disposed of by this single judgment.
2. The occurrence had taken place at the house of the appellants in the area of Village Dheduana, 12 miles away from Police Station Massan, District Jhang, at 7 a.m. On 14-8-1990.
3. One Mukhtar son of Thiraj during interrogation in a case under section 380, P.P.C., registered at Police Station Toba Tek Singh on 29-6-1990 confessed to have committed the theft alongwith Sajjad appellant and his brother Yousaf and undertook to get recovered the stolen property from them. Consequently P.W.8, Zulfiqar Ali, S.I. While posted at Police Station Toba Tek Singh took along Constables namely P.W.9 Noor Jamal, P.W.10 Sikandar Hayat, Abdul Ghaffar (the deceased) and another Constable (not produced) alongwith Mukhtar in police custody and fetters and came at Police Station Massan, District Jhang where they associated P.W.12 Haq Nawaz, Constable and reached the Dhari (residential hut) of the appellants. The police party met said Ghulam Farid who promised to appear before them alongwith the required persons namely, Sajjad appellant and his brother Yousaf. Shortly afterwards from the side of Creek of the river emerged Sajjad and Iqbal appellants carrying guns (P.7, 14), Arif with rifle (P.10), Haq Nawaz with a gun (P.13), Yaqoob with a Carbine (P.9) and stopped about half an acre short of the police party. Ghulam Farid demanded the police to release Mukhtar otherwise they will be shot dead. Mukhtar also tried to heckle for his release.
' However, the police refused to set him free whereupon Sajjad appellant fired straight at Abdul Ghaffar, Constable and the shot hit his chest. The other appellants also started firing at the police party who also retorted. All the appellants succeeded in making good their escape though chased for some short distance. Abdul Ghaffar, Constable in the meantime breathed his last. Zulfiqar Ali, Si.
Prepared a complaint (Exh.PA./1) and sent the same to Police Station Massan for registration of a case through Hassan Muhammad, Constable (given up) where formal F.I.R. (Exh.PA.) was recorded by Asghar Ali, S.I. (since dead) and the document was verified by P.W.13 Haibat Khan, S.I. Who was well versed with his handwriting. The investigation was initially conducted by Asghar Ali and it was subsequently transferred to Haibat Khan, S.I. Who while appearing as P.W.13 rendered different stages of investigation. The notable features of the investigation were that no crime-empty was recovered from the place of occurrence whereas after their arrest the weapons of offence were recovered from the appellants.
4, P.W.6 Dr. Muhammad Sarwar had conducted the post-mortem examination on the dead body of the deceased Abdul Ghaffar on 14.8-1990 at about 5-00 p.m, and found one fire-arm entrance wound 0,5 c,m. In diameter on the front and upper part of left chest, 4 c.m, above the left nipple, According to the doctor this injury was sufficient to cause death in the ordinary course of nature which was caused with a fire-arm. Metallic foreign material was recovered from the dead body but the doctor could not say if it was of a .12 bore gun or of a rifle. The doctor also found stomach containing two ounces of fluid material and the small intestines containing digested material.
5. The defence plea taken up by Ghulam Farid acquitted co-accused was adopted by all the appellants and reads as follows:- "Mukhtar son of Thiraj was inimical towards us. His father Thiraj and his uncle Moosa had murdered my maternal-uncle Wall upon which I had got a case registered against them some years ago.
Two/three years ago Thiraj and Moosa aforesaid who were acquitted in murder case again after making spy information got my buffalo and mare apprehended by Toba Tek Singh Police. I filed writ in the High Court upon which both the animals were restored to me. Because of this grudge Mukhtar again brought Toba Tek Singh Police to my Dhari. None of my sons were present there.
They had gone to Karachi to earn their livelihood. The police party manhandled me and our womenfolk and on our protest they burnt our houses, tractor and tube-well. Hearing the noise many persons of our locality collected there. Police party also fired at them and they also returned the fire at the police party. Some stray bullet or pellet hit the deceased who died at the spot. As the occurrence had taken place at my Dhari, the police involved me, my sons co-accused and Iqbal my servant. All the P.Ws. Belong to police party and they have falsely involved us in this case."
6. Disbelieving the defence plea and evidence of the prosecution on recoveries the learned trial Court proceeded to convict the appellants on the basis of ocular account furnished by the members of the raiding party which stood corroborated by motive and medical evidence. The learned defence counsel, however, has assailed these items of evidence which had impressed the learned Court and canvassed that the defence plea did carry possibility or probability of correctness.
7. The occurrence took place in the scenario that after Mukhtar Ali in police custody confessed to have committed theft alongwith Sajjad, appellant in a case already registered against them, took the police party to the Dhari of the appellants on the fateful day where the appellants instead of cooperative with the investigation of the police opened fire on them and issued (sic) by Sajjad appellant caused mortal injury to Abdul Ghaffar, Constable. This version is spelt out by P.W.8 Zulfiqar Ali, S.I., P.W.9 Noor Jamal, P.W.10 Sikandar Hayat, Constables (all of Police Station Toba Tek Singh) as well as P.W.12 Haq Nawaz, Constable of Police Station Massan, District Jhang. The story, however, is difficult to believe for reasons more than one. In the first instance we find that the police has not brought on record copy of F.I.R. Showing registration of a theft case against Mukhtar and Sajjad, appellants. Since the said theft had allegedly taken place within the area of Police Station Toba Tek Singh, it was very easy for the witnesses to produce the proof of the case. No record was produced either to show arrest of Mukhtar or that the police had obtained remand order from a Magistrate. Mukhtar who could be the best witness about this occurrence was also not examined.
Search warrants under section 103, Cr.P.C. Was also not produced to justify that the raid of the police was conducted in the legal and regular manner. The defence plea, in fact, is that police party in the small hours of morning (3 a.m.) stormed the home of the appellants in their absence when their 76 years old father Ghulam Farid was present with womenfolk and started firing after surrounding the Dhari of the appellants which was retaliated by the villagefolk and during that time some stray pellet hit the deceased. The appellants say that they were in Karachi to earn their livelihood at the relevant time and the weapons shown to have been recovered from them were planted on them. Further, the house, the tractor and other household paraphernalia of the appellants were burnt to ashes by the police. The possibility of correctness of the said version is not ruled out. P.W.2 Iqbal Hussain, Patwari admitted in cross-examination:-- "It is correct that when I visited the spot the houses of the accused were found burnt, their tractor was also seemed burnt whereas the tube-well has been dismantled."
' The prosecution has denied the said version and the learned trial Court also tried to explain away the matter by saying that the police having been infuriated by the loss of a Constable might have done the vandalism but so has not come out from the mouth of any witness and there is no reason to believe the hypothesis that the appellants might have done all the damage to mint their defence.
8. The medical evidence goes a long away to contradict the ocular account which appears to be correct only upto the extent that the police party did raid the Dhari of the appellants and there exchange of firing took place, but we are unclear about the presence of the appellants and their active participation in the incident. The crucial point detracting from the veracity of the ocular account is the factum of distance of firing between the assailants and the deceased. In the F.I.R.
The distance is stated to be half acre. According to the eye-witness Haq Nawaz, the accused at the relevant time were at a distance of 2/3 Kanals from the place of occurrence. According to Patwari the distance was 20 Karams which means 110 feet. Admittedly the deceased had received only solitary fire-arm wound. The injury is solely ascribed to Sajjad, appellant by his fire-arm from .12 bore gun (P.7). The doctor had to admit that pellets of gun .12 bore when fired at a distance of 110 feet spread in an area of 30 inches. The deceased, therefore, could not die of a pellet of .12 bore gun fired from such a long distance. The deceased appears to have died of a bullet of a rifle and the doctor also could not contradict this possibility. Admittedly Sajjad, appellant was not carrying a rifle and the witnesses who are all police officials are not supposed to err on the description of a weapon. The gun (P.7) is thus not connected with the occurrence. This gives rise to possibility or probability of correctness of the defence version that the deceased might have received injury during cross-firing by the villagers or by the policemen themselves. **** therefore, could not be utilised as corroborative piece of evidence and were rightly excluded by the learned trial Court from consideration. The ocular account is also in direct conflict with the medical evidence as discussed supra. The motive of the incident which took place immediately before the actual occurrence has also not been honestly set out by the prosecution. The police had failed to justify the action of raid and in the absence of corroborative evidence we are unable to place implicit reliance upon the ocular evidence. Admittedly all the appellants except Sajjad had not caused any injury to anyone and we have strong doubt about Sajjad appellant having caused fatal injury to the deceased. In the circumstances, we are constrained to accept the appeal and acquit all the appellants giving them benefit of doubt. They are set at liberty forthwith, if not required to be detained in any other case. Their conviction and sentences are set aside and the death sentence awarded to appellant is not confirmed. The Murder Reference is declined accordingly.