' MUHAMMAD AMIR MALIK, J.--- Shabbir (45 years), Muhammad Hanif (25 years), Muhammad Rafique (30 years), appellants alongwith Yameen (35 years) and Ghulam Sarwar (40 years) accused were tried by learned Additional Sessions Judge, Sheikhupura for the murder of Abdul Ghaffar deceased (30 years) son of Nawab Din, complainant (P.W.11). Vide judgment, dated 12-3- 1988 the former three were convicted under section 302/34, P.P.C. And the latter two acquitted.
Shabbir and Hanif were sentenced to suffer death each and a fine of Rs3,000 each or in default thereof three years' R.I. Each. Muhammad Rafique, appellant was sentenced to life imprisonment and a fine of Rs,2,000 or in default thereof two years' R.I. Whole of the fine, if realised, was ordered to be paid to the heirs of the deceased. The matter is before us for confirmation of the death sentence under section 374, Cr.P.C. And the convicts have also appealed. The reference and the appeal are being disposed of by this single judgment.
2. The occurrence took place at about 12-30 noon on 13-9-1985 in the area of Village Chheena at a distance of 2 miles from Khanqah Dogran Police Station. Nawab Din, complainant (P.W.11) lodged the F.I.R. (Exh.PJ.) on the same day at 3-00 p.m. With Muhammad Nasim, Inspector (P.W.15).
3. The version given in the F.I.R. Is that the complainant was living at a Dera about one mile on the north of the Village Abadi. An open Ihata in the Village Abadi was in possession of Inayat Masih etc. Christians. It was illegally occupied by Ruliya son of Karim Bakhsh about two months before the occurrence. The Christians agitated the matter and Tehsildar, Sheikhupura visited the village on 4- 9-1985 for enquiry. In the said enquiry Abdul Ghaffar, deceased alongwith others supported the Christians. In the presence of the Tehsildar Ruliya etc. Assaulted the deceased and his companions.
The Tehsildar reported the matter to the police who also initiated action in the matter.
4. The version proceeds that on account of this grudge of helping the Christians, the deceased when present in the fields was encircled by Shabbir carrying a double barrel gun, Hanif with a Carbine, Rafiq and Sarwar with .12 bore guns and Yamin with a hatchet. Hanif fired the shot hitting the deceased on the mouth. Rafiq and Sarwar fired in the air scaring away the witnesses. Yamin raised a Lalkara to Shabbir whereupon Shabbir also fired and hit the deceased in the face. The complainant, Abdul Haleem (P.W.12) and Abdul Jabbar (given up P.W.) reached the spot. The appellants and their co-accused raising Lalkaras left for the village. The deceased fell down at the spot dead.
5. Dr. Asif Mahmood (P.W.5) performed the post-mortem examination on the dead body of the deceased on 13-9-1985 at 9-30 a.m. It was the dead body of a young man with mouth and eyes closed, rigor mortis and postmortem staining present. It was having the following injuries:--
(1) A penetrating wound 1 c.m. x 1 c.m. On the right side of face just below the right eye.
(2) A penetrating wound 1 c.m. -x 1 c.m. On the right side of face on the right lower jaw 3 c.m. Below injury No,1 and the lower jaw was fractured.
(3) A penetrating wound 1 c.m. x I c.m. On the right side of face just lateral to right nostril and right lower jaw was fractured.
(4) A penetrating wound 2 c.m. x 2 c.m. On the right side of face just lateral to right angle of mouth.
(5) Lacerated wound 1 c.m. x 1 c.m. Cutting the right side of upper lip and cutting the tongue and left lower jaw was also fractured.
(6) Bleeding from the both ears was present.
(7) Penetrating wound 1 c.m. x 1 c.m. On the right side of face just below injury No,4.
' On dissection the lower part of the brain and membranes were congested, blood was present in the anterior, middle and posterior cranial fossa, whole base of skull was fractured and so were the lower and upper jaws of both sides. Two pellets were found in the right anterior fossa and card wad was also present in injury No,4. In the opinion of the doctor all the injuries were ante-mortem, by fire-arm and collectively and individually sufficient to result in death in the ordinary course of nature. The death was within a few minutes and the time between death and the post-mortem was 15 to 30 hours. In cross-examination the doctor admitted the suggestion that all the injuries could have been probable by one fire shot from the right side.
6. Muhammad Ayub, S.I. (P.W.13) on 22-9-1985 accompanied Muhammad Rafiq appellant to his house. After interrogation he got recovered gun (P.7) and was secured vide memo. (Exh.P.F.) In cross-examination he admitted that the appellant had already made disclosure to Muhammad Nasim, Inspector (P.W.15). Muhammad Sharif, S.I. On 22-9-1985 accompanied Rana Muhammad Nasim, Inspector and Muhammad Ayub, Si and other police officials and the five accused to Village Chheena. The Inspector handed over Muhammad Hanif appellant to him for interrogation. He made disclosure, led to his house and got recovered Carbine (P.6) which was secured vide memo.
(Exh.P.E.).
7. Muhammad Nasim, Inspector (P.W.15) investigated the case. He prepared injury statement and inquest report (Exhs.P.K. And P.L.), secured blood-stained earth from the spot vide memo. (Exh.P.G.) and sent the dead body for post-mortem examination. He also collected three empties from the spot vide memo. (Exh.P.H.) and made the same into sealed parcel(s). On 15-9-1985 Ramzan son of Ruliya produced five accused before him and he arrested them. On 22-9-1985 on interrogation Shabbir accused got recovered gun (P.10) from his house vide memo. (Exh.P.D.) which was sealed into a parcel. He also got prepared site plans (Exhs.P.B. And P.B./1) from Barkat All Patwari. He challaned the accused to Court.
8. The appellants at the close of the trial ascribed their involvement to enmity.
9. The eye-witness account of the occurrence was given by Nawab Din and Abdul Haleem (P.Ws.11 and 12) Motive part of the version was stated to by Sabir All (P.W.10). Dr. Asif Mehmood (P.W.S) provided the medical evidence. Recovery of three crime-empties from the spot and gun (P.5) at the instance of Shabbir appellant was stated to by Abdul Majid (P.W.7) and Rana Muhammad Nasim, Inspector (P.W.15). Recovery of gun (P.7) at the instance of Rafiq, appellant and Carbine (P.6) at the instance of Hanif, appellant was stated to by Mushtaq Ahmad (P.W.8).
10. The learned trial Judge did not believe Sabir Ali, P.W. Or the motive part of the story. However, believing the eye-witness, the medical evidence and the investigators he concluded the charge against the appellants.
11. Learned counsel for the appellants has contended that both the eyewitnesses were closely related inter se and with the deceased, were extremely inimical to the appellants and so could not be believed unless there was corroboration. According to him, there was no corroboration on the record. During arguments on 27-2-1991 we took note of the fact as to why the report of the Forensic Expert had not been tendered in evidence or brought on record. Enquiry was made into the matter.
Exercising the powers under section 428, Cr.P.C. We ordered the Forensic Expert's report to be brought on record in additional evidence.
12. Learned counsel for the appellants argued that even this report was not believable inasmuch as the recovery evidence was not believable. He pointed out that the appellants alongwith their co- accused were arrested by Muhammad Nasim, Inspector (P.W.15) on 15-9-1985, gun (P.5) was the licensed gun of Ramzan, the maternal-uncle of Shabbir appellant. Evidence as to the recovery of crime-empties from the spot was also of shady character.
13. After having heard the learned counsel for the appellants and the State at length and gone through the record we are inclined to agree with the learned counsel. Nawab Din, complainant is the real father of the deceased while Abdul Haleem, P.W. Is the paternal-aunt's son of the deceased. Abdul Jabbar (given up P.W.) was also a son of the complainant and brother of the deceased. Both Nawab Din and Abdul Haleem have admitted enmities with the appellants. It is clear from their statements that Abdul Haleem had a fight with Shabbir appellant etc., case under section 307, P.P.C. Was registered and Abdul Haleem was a P.W. In that case. Hanif, appellant is son of Abdul Hamid son of Ruliya, Rafiq appellant is son of Ruliya and Shabbir appellant is son of a daughter of Ruliya. The appellants are, therefore, very closely related. It is also in the statements of the two eye-witnesses that Shah Nawaz, uncle of Shabbir appellant and a nephew of Ruliya was- murdered before the present occurrence and Abdul Ghaffar deceased, Abdul Jabbar and Abdul Haleem, P.Ws. Were the accused in that case. Maulvi Jalal Din of the village was also murdered before the present occurrence in which the complainant, the deceased, Abdul Jabbar and Abdul Haleem, P.Ws. Were challaned. It was, however, denied that Abdul Hameed, a son of Ruliya mentioned above was a P.W. In that case. Thus, the two eye-witnesses are extremely inimical to the appellants and they I cannot be believed unless there is corroboration. The motive part of the story was not accepted by the learned trial Judge. We have been taken through the statement of Sabir Ali P.W. And we think that for valid reasons he was not relied upon. The Tehsildar was not cited as a witness. His report to the police was not brought on record nor the proceedings initiated by the police on the basis of his report. It also appears from the statements of the two eye-witnesses and Sabir All that in the security proceedings arising out of the dispute before the Tehsildar the deceased was not involved.
14. According to the report of the Fire-arm Expert one of the crime-empties had been fired from the double barrel gun recovered from Shabbir appellant and the two crime-empties from the pistol (Carbine) recovered from Hanif appellant. According to the report the parcel of crime-empties was received on 17-9-1985 and that of the weapons on 19-10-1985. The crime-empties do not find any mention either in the inquest report, the F.I.R. Or the site plans. According to recovery memo.
(Exh.P.H. The three crime-empties were separately sealed into parcels. When we examined Muhammad Nasim, Inspector on oath, he came out with the version that only one sealed parcel of the three crime-empties had been prepared. Munir Ahmad, A.S.I. (P.W.16) was the Moharrar of the police station. He deposed that Nasim, Inspector gave him the parcels of blood-stained earth and a crime-empty on 15-9-1985 (the day all the accused were arrested). Khalid Rashid, Constable (P.W.3) informed the Court that the Moharrar gave him the sealed parcels of earth and crime- empty on 17-9-1985 for being taken to the Chemical Examiner and the Forensic Expert. Ashiq Hussain, Constable (P.W.2) stated that the Moharar gave him one parcel of Carbine and one of gun on 19-10-1985 for onward transmission to Forensic Science Laboratory. On the other hand, Muhammad Ibrahim, the then Moharrar of the police station (P.W.6) deposed that he had given the two parcels to the Constable on 7-10-1985. The recovery of the three crime-empties from the spot is, therefore, a doubtful affair. Even if Nasim, Inspector is relied upon, the despatch of the parcels of the crime-empties and the guns also make the whole affair a doubtful one. When the accused/appellants had been arrested on 15-9-1985 and parcels of the crime-empties given to Munir Ahmad, A.S.I. (P.W.16), the Moharrar on that very day, the possibility of the fabrication of the crime-empties also cannot be ruled out.
15. The result is that there is no corroborative evidence and so the eyewitnesses cannot be believed. The appellants are, therefore, granted the benefit of doubt and are acquitted. Shabbir and Muhammad Hanif appellants be set at liberty forthwith, if not required to be detained in any other case. Muhammad Rafiq, appellant is on bail and stands discharged of the bail bonds. The appeal is accordingly accepted and the Reference is declined.