RAJA MUHAMMAD KHURSHID, J.---The appellants and two others namely Muhammad Qasim and Suba Khan were arraigned under section 302/ 307/148/149, P.P.C. For the murder of Sher Khan son of Dost Muhammad.
2. The appellants were convicted and sentenced to various terms by S.M. Waqar-ul-Hasan Shah Bokhari, learned Additional Sessions Judge, Chakwal vide his judgment dated 15-8-1991. The appellant Noor Hussain was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs.10,000 or in default to suffer one year's R.I. The fine if recovered was to be paid to the legal heirs of the deceased. The aforesaid appellant namely Noor Hussain and Sardar Khan were also convicted under section 324, P.P.C. And sentenced to two years' R.I. And a fine of Rs.1,000 or in default to suffer 6 months' R.I. The appellant Itibar Khan, Fateh Muhammad and Nawab Khan were convicted under section 323, P.P.C. And sentenced to 9 months' R.I. Each and a fine of Rs.1,000 each or in default to suffer three months' R.I. The fine if recovered, was to be paid to the injured P.Ws.
Namely Muhammad Nawaz and Samunder Khan. The appellants Fateh Muhammad, Ghulam Hussain and Nawab Khan were convicted under section 148, P.P.C. And sentenced to one year R.I.
Each and a fine of Rs.1,000 each or in default to suffer three months' R.I. The appellant Itibar Khan was convicted under the aforesaid section and sentenced to 1-1/2 years' R.I. And a fine of Rs.1,500 or in default to suffer 6 months' R.I. The appellants Noor Hussain and Sardar Khan aforesaid were convicted under the aforesaid section and sentenced to 2 years' R.I. Each and a fine of Rs.2,000 each or in default to suffer 6 months' R.I. The fine if recovered was to be paid to Muhammad Nawaz and Samundar Khan in the ratio of 2/3rd and 1/3rd respectively. All the sentences were directed to run consecutively. The benefit of section 382-B, Cr.P.C. Was also extended to all the convicts. The learned Additional Sessions Judge acquitted Muhammad Qasim and Suba Khan after giving them the benefit of doubt vide the same judgment.
3. Murder Reference No.389 of 1991 was made by the learned Additional Sessions Judge for the confirmation of death sentence awarded to Noor Hussain appellant. Likewise Criminal Revision No.146/91 was filed by Muhammad Nawaz complainant against acquittal of Muhammad Qasim and Suba Khan with a prayer that they along with other appellants namely Itibar Khan, Sardar Khan, Fateh Muhammad, Nawab Khan and Ghulam Hussain be convicted and sentenced under section 302/307/148/149, P.P.C. Both these matters will be decided vide this judgment.
4. The brief facts are that F.I.R. Exh. PR was lodged by Muhammad Nawaz P.W.11 at Police Station, Tomman, District Chakwal on 11-5-1987 at 1-00 p.m. For an occurrence, which took place on the same day at 7-00 a.m. In which the deceased was done to death. According to F.I.R., the complainant was resident of Dhoke Phali and was working as Rigman in Toot Oil Field. He was on leave and was proceeding to join duty along with Sher Khan deceased who was also employed as Store Keeper in the same company. The deceased had reached at Toot Oil Field No.1 at about 7-00 a.m. On the unfortunate day to take up the duty. The complainant also reached there and saw the accused namely Ghulam Hussain armed with rifle, Noor Hussain armed with hatchet, Suba Khan with 12 bore gun, Itibar Khan with Waholi, Sardar Khan with hatchet, Muhammad Qasim with hatchet, Fateh Muhammad and Nawab Khan both armed with Soties at the place of occurrence. All of them were sitting in ambush and raised Lalkara on seeing Sher Khan deceased. Out of them Ghulam Hussain and Suba Khan aimed their rifle and gun respectively at the deceased and shouted that if somebody tried to intervene, he will be killed. Thereafter, Noor Hussain appellant/accused gave a hatchet blow from its sharp side on the head of the deceased. The appellants Sardar Khan and Muhammad Qasim (acquitted) also gave hatchet blows on the head of the deceased, whereupon the latter fell down. On seeing this the complainant rushed to that side and when he reached near his deceased brother, he was also attacked by Fateh Muhammad with his Soti and injured the right side of his head. Nawab Khan, Itibar Khan and Fateh Muhammad also gave Soti blows and Waholi blow-- respectively to the complainant thereby injuring his right arm and legs. The complainant raised hue and cry, which attracted Samundar Khan P.W.12 and others namely Irshad Ahmad, Muhammad Khan and Khan Muhammad who were present nearby and had allegedly seen the occurrence. The accused Ghulam Hussain and Suba Khan aimed their rifles whereupon nobody intervened out of fear. However, Samundar Khan P.W. Went forward, but was injured by Fateh Muhammad and Nawab Khan by giving him Soti blows. Ghulam Hussain gave Butt blows of his rifle to Muhammad Khan thereby causing him injury. Thereafter, Noor Hussain and Itibar Khan gave blows to the deceased after he had fallen down with their respective weapons from its wrong as well as sharp side.
5. The motive for the occurrence was the suspicion entertained by Ghulam Hussain that the deceased had illicit relations with his daughter Mst. Malkani and on account of that suspicion Ghulam Hussain with the help of Niaz Gul and Muzaffar Khan gave Soti blows to the deceased on 10-5-1987 but they did not succeed to take his life on that date. In pursuance of the same occurrence the present occurrence was committed on the next following day i.e. 11-5-1987.
6. The prosecution examined two eye-witnesses namely Muhammad Nawaz complainant as P.W.11 and Samundar Khan an injured P.W. As P.W.12 respectively. The remaining witnesses namely Irshad Ahmad, Muhammad Khan and Khan Muhammad were given up on the plea that they have been won over. The accused were arrested on 16-5-1987. The blood-stained earth was recovered from spot on 11-5-1987 vide memo. Exh. P.1. Noor Hussain accused led to the recovery of blood-stained hatchet P.4 vide memo. Exh. P.E. On 25-5-1987 from his residence in the presence of Muhammad Aslam and Muhammad Ashiq P.Ws. Ghulam Hussain led to the recovery of rifle .303 bore along with two rounds vide memo. Exh. P.K. On 5-7-1987 from his residence. The blood-stained Waholi was got recovered by Itibar Khan vide memo. Exh. P.G. Likewise Sardar Khan got recovered blood-stained hatchet P.5. Vide memo. Exh. P.F. From a residential room of his house. The Soti P.9 was got recovered by Fateh Muhammad accused vide memo. Exh. P.J. While Nawab Khan led to the recovery of blood-stained Soti P.8 vide memo. Exh. P.I.
7. The medical evidence consisted of Statement of Dr. Awais Ahmad Butta (P.W.10), who conducted the post-mortem examination upon the deceased and found 11 injuries on his person. The detail of injuries is given in the post-mortem report Exh. P.M. All the injuries were found to have been inflicted with blunt weapon. Injury No.1 was considered dangerous to life and was sufficient to cause death in the ordinary course of nature. Injuries Nos.4 and 8 were held to be grievous and the remaining were found to be simple. The same doctor had prepared the Medico-Legal Report Exh. P.N. In respect of Muhammad Nawaz complainant P.W. He had found 8 injuries on his person out of which injury No. 4 was grievous and remaining were stated to be simple. The same doctor had examined Samundar Khan and had found that there were three injuries on his person vide Medico-Legal Report Exh. P.O. And that all the injuries were inflicted with blunt weapon.
8. Dr. Tahir Aziz Radiologist was examined as P.W.14 to show that there was fracture of right scapula of Muhammad Nawaz P.W. However, no bony injury was seen invault of the skull and ribs. His report Exh. P.Z. Was brought on record being in his hand and signed by him. Ex-Ray films Exh. P. Z.1 to Exh.
P.Z.6 relating to aforesaid Muhammad Nawaz were also brought on record. During the cross- examination a question was put to the Radiologist, to which he answered that he examined the right arm of Noor Hussain accused present in the Court. The Radiologist stated that the right elbow of the aforesaid accused appeared to be deformed. He, however, added that he was not an expert in that field so as to say whether Noor Hussain-could lift up his arm beyond 10/15/20 degrees. After examining some formal witnesses and after putting the Investigating Officer in the witness-box, the prosecution closed its case.
9. The accused were examined under section 342, Cr.P.C. Ghulam Hussain accused/appellant whose statement was adopted by all his co-accused stated that all of them were falsely implicated in this case due to previous enmity and suspicion. They put up a counter story that the deceased and the injured P.W. Used to block the way leading to O.D.G.C. Premises to extract money from the company officers. On the day of occurrence, they along with some persons blocked the passage whereupon a fight ensued between them and the company employee who tried to enter the company premises. All of them, therefore, claimed to be innocent. None of the accused except Suba Khan led the defence evidence. Apart from him Noor Hussain accused took up the plea that he was unable to wield any, weapon on account of his defective arm and examined Dr. Syed Farrukh Habib Sadiq Shah Orthopaedic Surgeon as D.W.1. Noor Hussain son of Maqsood Ali was also examined to produce certified copies of some letters. Muhammad Ashraf, Head Constable was examined as CWA in respect of F.I.R. Exh. D.D. To show that original F.I.R. Was substituted as according to the original F.I.R. Suba Khan and Ghulam Hussain had allegedly fired from their respective gun and rifle causing injury to the head of the deceased.
10. We have heard the learned counsel for the parties. It is to be seen if the prosecution has been successful to prove its case beyond any reasonable doubt.
11. The learned counsel for the appellants assailed the testimony of the eye--witnesses on the ground that they were related inter se and also to the deceased.
12. Secondly they were not only related but were also interested and inimical to the appellants/accused as there existed history of enmity since 1985 over the outraging of modesty of Mst. Malkani a sister of the complainant and the deceased. The witnesses of recovery were also related to the complainant side and as such interested to involve the accused falsely in this case. It is for that reason that the recoveries were not even believed by the learned trial Court. It was stated that medical evidence was also inconsistent with the version given by the eye-witnesses and almost incredible because admittedly the accused party wanted to finish Sher Khan but they used wrong side i.e. Blunt side of hatchet and Waholi and did not use the fire-arm to accomplish the job.
It was, therefore, urged that the prosecution story was inhibited by intrinsic doubt and on such doubtful testimony the conviction could not be based without some sort of corroboration of truthful order. A reference was also made to the statement of C.W.1 Muhammad Ashraf, Head Constable who had prepared Exh.D.D as correct copy of the original F.I.R. No.33 dated 11-5-1987 relating to this occurrence and found affixed in the register of F.I.R. Of-Police Station, Taman. A perusal of Exh. D.D.
Would show that Ghulam Hussain and Suba Khan while armed with rifle and gun respectively aimed at the deceased Sher Khan after raising Lalkara and fired in his head. However, according to C.W. There was a clerical addition though this did not exist in the original F.I.R. The explanation in this context was given by the Head Constable that he was writing while a constable sitting with him was reading out the F.I.R. According to the Head Constable the firing shown in the Exh. D.D. Was not found in the original F.I.R. And that it was a clerical mistake as he did not compare it with the original.
13. The learned counsel for the appellants, however, assailed the testimony of this witness on this aspect on the ground that it was not a clerical omission, but was a truth which even perforated out of the tight-lips of complainant Muhammad Nawaz, who during the cross-examination admitted that he had stated before the police that Suba Khan and Ghulam Hussain accused aimed with their respective weapons and fired at his brother which hit him on his head. It was, therefore, submitted by the learned counsel for the appellants that the people may tell lie but the documents will never. As such it was contended that. C.W.1 tried to suppress the truth but the same came out like a flash during the cross-examination of the complainant namely Muhammad Nawaz, who is admittedly a brother of the deceased. The learned counsel for the appellants therefore, assailed the very basis of the case on which the whole story of the prosecution was concocted and wrongly built up. In this context, the learned counsel added that in fact the F.I.R. Was the result of due deliberations and consultations by the complainant side. The local police had concocted the present story on seeing the medical evidence, which disclosed that all the injuries were inflicted with blunt weapon and none was caused with any fire-arm on the person of the deceased or to any of the P.Ws.
14. The learned counsel for the appellants further assailed the prosecution story on the ground that recoveries were not of any use in the present case as those were also based on the tainted evidence which was not only interested but inimical to the accused side and closely related to the complainant, side. As such no tainted evidence could be used to support another tainted evidence and as such was rightly disbelieved by the learned trial Judge. However, it was submitted by the learned counsel for the appellant that the learned trial Judge fell in error to use the same type of tainted evidence to convict the present appellants which he had disbelieved qua the acquitted accused namely Muhammad Qasim and Suba Khan. It was particularly so because no line of distinction could be successfully drawn between the acquitted accused and the convicted accused as evidence against both sets was of the same nature and quality.
15. It is urged that the medical evidence was not only inconsistent but was also self-destructive because according to the F.I.R. And the eye-witnesses three persons had given blows on the head of the deceased, but only two injuries were found according .To the Medico-Legal Report. It was, therefore, not clear as to which injury was ascribed to which accused particularly when one of the assailants namely Muhammad Qasim was acquitted. The learned trial Court while acquitting the aforesaid Muhammad Qasim and Suba Khan had made observation that they were innocent and were wrongly implicated. After such a positive finding, the whole evidence of the prosecution against all the accused had become doubtful and could not be deployed to make the conviction of the appellants. Reliance in this regard was made on PLD 1959 SC 109, 1983 PCr.LJ 19, 1984 SCMR 19C and 1984 SCM R 485 to sustain the above contentions. According to the learned counsel for the appellants, the story of motive remained doubtful. No direct evidence was produced to show that on a day before the unfortunate occurrence, the deceased was attacked by Ghulam Hussain and two other persons nor the said occurrence was substantiated by producing any medical evidence, to that effect. It was, therefore, contended that the motive was only created and in fact no such occurrence had ever taken place so as to lend any credibility to the prosecution version.
16. In view of the aforesaid situation the defence story seems to be convincing and highly reasonable that the complainant and the deceased acted as demagogues in O.G.D.C., and used to block the way of the workers employed in the company in order to extract money from them. On the day of occurrence they behaved in the same fashion, which resulted into the occurrence in which the deceased had to lose his life. Taking the advantage of the situation, the complainant side cooked up the story to implicate their old enemies to settle their account of the past inimical events which kept them boiling throughout.
17. Lastly it was contended that the prosecution case was highly doubtful, in that Noor Hussain appellant was incapacitated to use his arm so as to inflict serious blow, which may result into the death of the deceased, as his arm was not strong enough to move freely to cause such a heavy blow. However, it was unfortunate that evidence to that effect was shut out as was don-- in the case of D.W.2. The learned counsel for the complainant opposed the production of some letters written by O.G.D.C., which would have shed light on the true story of the accused.
18. The learned counsel for the State contended that the motive was proved through P.W.7 Muhammad Aslam and that the occurrence took place in broad daylight. Therefore; there was no possibility of any error or mistake regarding the assailants. When confronted with Exh.DD, the learned counsel for the State contended that it was a clerical omission on the part of petty official and ought to be overlooked.
19. We have given our careful consideration to the above arguments. There is no escape from the conclusion after going through the statements of eye--witnesses that they were not only inter se related to each other closely but were also related to the deceased. It is also clear from the statement of complainant Muhammad Nawaz that there was a background of enmity between the parties since 1985 when his sister Mst. Bakhat Begum was molested and tried to be outraged, by the accused Suba Khan, Itibar Khan and Sardar Khan etc.
20. The complainant had stated that prior to the incident of 10-5-1987 Suba Khan etc. Accused had no enmity with them. However, in his same statement regarding the incident of Bakhat Begum, he admitted that it generated enmity with the accused party and the complainant side. It was also stated during cross---examination by the complainant that they had retaliated the occurrence of Bakhat Begum by beating Itibar Khan one of the appellants who was also accused in that case, but he again corrected himself in the same breath by saying that incident of quarrel took place on account of acceptance of tender by the company (O.G.D.C.). However, he stated that the incident of tender had occurred after the molestation of Bakhat Begum. A case was accordingly registered under section 324/148/149, P.P.C. At the report of Itibar Khan appellant regarding the abovementioned incident against the complainant side.
21. It follows from above that the parties had admittedly inimical background. It was further admitted by the complainant that P.Ws. In this case were the members of the same family. This shows that the P. Ws. Were not only closely related inter se but were also inimical to the accused side i.e. Appellants. The complainant also admitted that they had some dispute with O.G.D.C. In the past on account of payment of compensation and that the said dispute was pending for the last 10 years. It was further admitted by the complainant that he and his deceased brother Sher Khan had blocked the passage leading to the Toot Oil Field on account of this dispute. This part of the statement of the complainant makes it clear that in the past also the complainant and his brother (deceased) with the help of his companions used to block the passage leading to the Toot Oil Field and that it was not an innovation on the part of defence to raise this plea for the first time. Although it was denied that the occurrence had taken place due to a fight ensuing from the blockage of passage, but the defence story is to be looked into in its background and in comparison to the prosecution version to find out as to which was reasonable story. The complainant has alleged that he was present at the place of occurrence, as he had to reach for duty there. At the same time he stated that he was employed at Dakhni No. 6, which is at a distance of 85 miles from Toot Oil Field and that there was no Rig-machine functioning in the said field since September 1986. It may be pointed out here that the complainant had stated earlier that he was a Rig-man and was employed at Toot Oil Field. However, this statement of the complainant becomes doubtful because according to his own version during the cross-examination, no rig---machine was functioning at Toot Oil Field. As such his contention that he had gone to report for duty at Toot Oil Field would be belied by his own statement. He also deposed that Noor Hussain and Itibar Khan did not inflict any injury by the hatchet or Waholi from the sharp side on Sher Khari, when he had fallen down.
22. The prosecution story is that the appellants had assembled there to finish the deceased and if so was their common' object and intention, then why they have not used rifle and gun with which two of them were armed. Likewise it is also not understandable, as to why the sharp side of the weapons like hatchet or Waholi was not used to inflict the injuries to the deceased if they actually wanted to kill him. The normal course of events would suggest that in this situation, the accused/appellants while armed with fire-arms would use the same to finish the deceased and accused armed with hatchet etc. Would use sharp side of the weapon instead of using them from wrong side. The departure from this phenomenon would identify some inherent flaws in the prosecution case, 6 which were tried to be removed after having looked at the medical evidence and after due deliberations and consultations. It is for that reason that the first version reported to the police that S4ba Khan and Ghulam Hussain accused had fired from their arms injuring the head of the deceased was substituted with the present version of the non-use of fire-arm and use of hatchet etc. From their wrong sides as injuries to the deceased and P. Ws. Were with blunt weapons. In such a situation, the very basis i.e. F.I.R. Becomes a doubtful piece of evidence and any structure built over if would crumble in an attempt to support it through tainted, interested and inimical evidence. Any reasonable mind will not accept the present version advanced by the prosecution. It is also a matter of serious concern that in the F.I.R. Three accused had wielded their weapons to cause injuries on the head of deceased, but according to the post-mortem report, there were only two injuries on the head of the deceased, which made the prosecution case highly doubtful regarding the implication of all the three accused nominated therein although out of them one namely Muhammad Qasim had already been acquitted being held as innocent by the learned trial Court. The other co-accused namely Suba Khan who was allegedly armed with a gun was also found innocent and his plea of alibi was accepted by the Investigating Agency. He has been held innocent by the learned trial Court. This shows that an unholy effort has been made even to involve innocent persons in this blood feud. The investigation in this case was also unwholesome. The Investigating Officer had resorted to a C wrong method of pick and choose while dealing with the case. The plea of alibi was raised before him by Suba Khan to which he verified and came to the conclusion that he was not present at the place of occurrence and as such placed him in Column No.2 of the challan. Likewise he arbitrarily rejected the plea of alibi raised by Muhammad Qasim before him and did riot advance any reason to be dissatisfied by the evidence adduced before him in that respect. It shows that the investigation was not conducted on scientific lines as would be clear from the cross-examination of the Investigating Officer, who admitted that it was brought to his notice during the course of investigation that employees of Toot Oil Field used to mark their attendance at the place of occurrence but he did not bother to verify as to how many workers used to assemble there. According to him, investigation on this line was not unnecessary although it was the plea of the accused that they were involved due to enmity, but the occurrence had taken plea in some different manner. Any sanguine effort on the part of the Investigating Officer would have highlighted the true facts but no effort was admittedly made to look into the background, which resulted into the present occurrence. Investigating Officer also admitted that during the whole of his investigation no eye-witness of the occurrence taking place on 10-5-1987 .Had appeared before him. He also admitted that no medical report in respect of Sher Khan deceased regarding his injuries on the aforesaid date was produced before him. It is thus obvious that the incident of 10-5-1987 resulting from the suspicion of illicit relations between the Sher Khan and Mst. Malkani i.e. The daughter of Ghulam Hussain accused remained highly doubtful. It, therefore, follows that the prosecution story was not only weak on account of any credible testimony of the eye-witnesses, but also remained unsubstantiated regarding the motive alleged in the F. I. R.
23. The statement of Muhammad Aslam would not be of any value under the existing circumstances because there was no corroborative evidence of intrinsic value to sustain the story disclosed by him. Although he stated that there was some brawl between the deceased and Ghulam Hussain in which the former had hit the latter with a Soti and caught hold of his arm but at the same time the witness stated that Muzaffar Khan while armed with Soti hit Sher Khan. On seeing the incident the witnesses along with Khan Muhammad rescued Ghulam Hussain. Rather the witness was told by the deceased that ho was being suspected for illicit relation by Ghulam Hussain for which the above occurrence had taken place. As already stated above, the witness is not only related to the complainant side but appears to be a chance witness, as he was present at the Petrol Pump to chit chat with one Khan Muhammad. The cross-examination of the witness shows that he made improvement in order to strengthen the prosecution story and was disbelieved even by the learned trial Court in respect of the recoveries effected from the accused.
As already stated above, there is no trustworthy corroboration of this witness relating to the first incident, therefore, his bald statement would not help to prove the motive as alleged by the prosecution.
24. The question of deformity of Noor Hussain to wield weapon with right arm is also meaningful. In this respect, the statement of Dr. Syed Farrukh Habib Sadiq Shah D.W. 1, Orthopaedic Surgeon will show that his right hand was not functioning normally and he was disabled to use any kind of force as compared to his left hand. Although the doctor stated that the deformity was approximately one year's old, but certainty regarding the period of disability could not be assessed because a question to that effect was disallowed by the learned trial Court thereby shutting out the possibility of getting a clear verdict from the expert. However, the statement of Noor Hussain accused under section 342, Cr.P.C. Would be relevant so far his answer to question No.13 is concerned, wherein he had contended that he was unable to hold or use to inflict any injury to any one. Although no evidence of certainty was produced, but the fact remains that there was disability of some nature with the right hand/arm of the aforesaid accused at the time when he was examined by D. W.1 and the aforesaid deformity existed for approximately one year prior to the said examination. In such a situation, the possibility could not be ruled out that the disability might I have existed at the time of occurrence as alleged in the defence particularly when a question to the expert was shut out on the objection of the complainant side to ascertain the exact age of disability by suggestion that the same could be more than 5 years or 10 years old. Any ambiguity in that connection would create a reasonable doubt in favour of the accused particularly when a chance of clarification has been shut out and also because of the nature of evidence adduced by the prosecution and as analysed above.
25. In view of our above discussion, we come to an irresistible conclusion that the prosecution has not been able to prove its case beyond any reasonable doubt against any of the accused/appellants. We, therefore, accept the appeal and while extending the benefit of doubt to all the appellants acquit them of all the E charges against them. Death sentence awarded to Noor Hussain appellant under section 302, P.P.C. Is, therefore, not confirmed. The conviction and sentences awarded to all the appellants by the learned trial Court are accordingly set aside.
Murder Reference No.389/91 is accordingly disposed of.
26. The Criminal Revision No. 146 of 1991 also stands dismissed.
27. The appellant Noor Hussain shall be set at liberty forthwith if not required to be detained in any other case. The remaining appellants are on bail and their bail bonds shall stand discharged.