' SH. ABDUR RAZZAQ, J.--- Resume and episode of woe as set up in F.I.R. Exh.P.J. Is that on 2,2-7-1990, and eventful and fateful day, Muhammad Rauf Anwar complainant (P.W.12) left his house along with his father Muhammad Akhtar Anwar, Advocate (deceased) and uncle Muhammad Younas on foot for District Court, Toba Tek Singh. They reached near an open plot of Ch. Abdul Majeed Kahloon, at 7-15 a.m. When Javed Aslam Kahloon, Advocate, happened to come there on his motorcycle. He stopped his motorcycle and after embarking the deceased on the rear seat of motorcycle proceeded to Katchehry. They had hardly covered a few paces, when 5 persons namely Akhtar alias Siana son of Abdul Khaliq, Nasrullah son of Muhammad Ismail armed with carbines and three other unknown persons emerged from the said open plot. Accused Akhtar alias Siana shouted Lalkara that Muhammad Akhtar Anwer deceased be taught a lesson for pursuing cases against them. He (Akhtar alias Siana) simultaneously opened fire with his carbine hitting the deceased on his left shoulder. Accused Nasrullah fired which hit the deceased on the back of left shoulder. The other three unknown persons also fired hitting the deceased on the outer side of his left shoulder. Their third shot hit the back light of motorcycle as a result of which the deceased fell on the ground. The assailants then fled away from there. The incident was witnessed by Javid Aslam and Muhammad Younas. The injured (Muhammad Akhtar Anwar) was removed to D.H.Q.
Hospital, T.T. Singh, but he succumbed to the injuries before any medical aid could be provided to him.
2. After the incident, the complainant was told by Muhammad Anwar son of Muhammad Akbar and Khalid Sher son of Fateh Muhammad that on 17-7-1990 at 6-00 p.m. They had heard Muhammad Idrees and Muhammad Hanif conspiring at Railway Station T.T. Singh that their brother Akhtar Siana was arriving by train and they would get Muhammad Akhtar Anwar, Advocate, killed, and get themselves involved in some fake case to save their skin.
3. The motive for the occurrence as alleged by the complainant in the F.I.R. Was that his father had been appearing in the cases against Akhtar Siana and others and due to that grievance the accused had committed the murder of his father in privy with Muhammad Idrees and Muhammad Hanif. He left the dead body under the supervision of Muhammad Nasrullah and Muhammad Aslam and made for police station for lodging report.
4. Tariq Mehmood, Inspector (P.W.15) recorded F.I.R. Exit. P.J. And made for hospital. He prepared statement of injuries Exh.P.O., inquest report Exh.P.P. And dispatched dead body through Sikandar Hayat (P.W.5). He then proceeded to the place of occurrence, prepared its rough site plan Exh.P.Q.
And secured blood-stained earth vide memo. Exh.P.K., motorcycle P.8, broken pieces of back light Exh.P.10/1-10 vide memo. Exh.P.N., two empties of cartridges P.11/1-2, two empties of bullets P.12/1-2 vide memo. Exh.P.L., one pair of Chapel P.9/1-2 vide memo. Exh.P.M. On 22-7-1990 D.S.P. Verified his investigation. On the same day Sikandar Hayat, Constable (P.W.5) produced last-worn clothes of the deceased P.1 to P.3 along with pellets which he took into possession vide memo. Exh.P.D. He delivered all parcels to Moharrir. On 23-7-1990 arrested accused Muhammad Hanif. On 24-7-1990 he secured site plans Exhs.P.C. And P.C./1 produced by Syed Kazim Hussain Gilani (P.W.3). On 17-8- 1990 arrested accused Nasrullah who led to the recovery of carbine P.4 and six live cartridges Exh.P.5/1-6 and prepared its sealed parcel vide memo. Exh.P.G. On 20-8-1990, arrested Muhammad Aslam accused who led to the recovery of pistol Exhs.P.6 and 6 live bullets Exh.P.7/1-6 vide memo.
Exh.P.H. He recorded the statements of witnesses. He also registered case under section 13/20/65, Arms Ordinance against Muhammad Idrees and Muhammad Hanif. After completing investigation, got the accused challaned.
5. A charge under sections 302, 148, 149 and 109, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution examined P.W.1 Nemat Ali Arshad, S.-I. Who produced application Exh.P.A. Before A.C. Toba Tek Singh for holding identification parade of accused Muhammad Aslam.
The application was marked to Duty Magistrate and was presented before Muhammad Shahid Javed, M.I.C. (P.W.2) on 26-8-1990 and who ordered for holding said identification parade on 28-8- 1990. During the said parade, the accused-appellant,Muhanunad Aslam was identified by the complainant (P.W.12), Javed Aslam (P.W.13) and Muhammad Younas P.W. (not produced). He tendered his report Exh.P.B. And certificates Exh.P.13./1-2. Syed Kazim Hussain Gilani (P.W.3)
Draftsman visited the place of occurrence on 24-7-1990 and prepared site plans Exhs.P.C. And P.C./1 and handed over the same to the Investigating Officer on 26-7-1990. Muhammad Ashraf, Head Constable (P.W.4) deposed about securing of certain parcels for keeping the same in Malkhana and thereafter, its delivery to Sikandar Hayat, Constable (P.W.5) for its onwards delivery in the office of Chemical Examiner and Forensic Science Laboratory, Lahore, Sikandar Hayat (P.W.5) deposed that he escorted the dead body and was given last-worn clothes and other documents by the Medical Officer and he produced the same before the Investigating Officer who secured the same vide memo. Exh.P.D. He also corroborated the version of P.W.4 regarding entrustment of parcels and its delivery in the said offices. Mushtaq Ahmad, A.S.-I. (P.W.6) and Abdul .Ghaffar F.C.
(P.W.7) are formal witnesses as they were handed over warrants and proclamation in respect of Muhammad Aslam alias Siam and Nasrullah accused. Maulana Muhammad Abdullah (P.W.8) deposed about the identification of the dead body at the time of post-mortem examination. Dr. Muhammad Khalid (P.W.9) deposed that on 22-7-1990 at 9-30 a.m. He conducted post-mortem examination of Muhammad Akhtar Anwar deceased and found the following injuries on his person:--
(1) A wound of entry 1 x 1 c.m. On the outer side of the upper part of the left shoulder. The area around the wound was slightly blackened and tattooing was present. Corresponding cut was present on the Qamiz.
(2) A wound of entry 1 x 1 c.m. On the outer side of the upper part of the left shoulder 1 c.m. Below injury No,1. The area around the wound was slightly blackened and tattooing was present.
Corresponding cut was present on the Qamiz.
(3) A wound of entry 1 c.m. x 1/2 c.m. On the outer side of the left shoulder just below injury No,2. The area around the wound was slightly blackened and tattooing present, corresponding cut was present on the Qamiz.
(4) A wound of entry 1 c.m. x 1/2 c.m. On the outer side of the left shoulder 1 inch left side of injury No,l. The area around the wound was slightly blackened and tattooing was present. Corresponding cut was present on the Qamiz.
(5) A wound of entry 1 c.m. x 1/2 c.m. On the outer side of the left shoulder. This wound was 2 c.m.
Below and to the right to injury No,4.
' The area around the wound was slightly blackened and tattooing was present. Correspondent cut was present on the Qamiz.
(6) An abrasion on 3 c.m. x 6 c.m. On the outer side of the left shoulder. This injury was 2 c.m. Below injury No,5.
(7) An abrasion 2.5 c.m. x 0.6 c.m. On the outer side of the left shoulder. This injury was 2 c.m. Below and parallel to injury No,6.
(8) A wound of entry 1 c.m. x 1 c.m. On the back of the left shoulder blade, upper part. The area around the wound was slightly blackened and tattooing was present. Corresponding cut was present on the Qamiz.
(9) A wound of entry 1 c.m. x 1 c.m. On the back of the left shoulder blade 1 inch below and left to the injury No,8. The area around the wound was slightly blackened and tattooing was present corresponding cut was present on the clothes.
(10) A wound of entry 1 c.m. x 1 c.m. On the back of the left shoulder blade 1 inch towards the right of the injury No,9. The area around the wound was slightly blackened and tattooing was present.
Corresponding cut was present on the Qamiz.
(11) A wound of exit 2 c.m. x 1 c.m. On the back of the mid of the chest just towards the right side of the mid line. Corresponding cut was present on the Qamiz.
(12) A wound of exit 1.5 c.m. x 1 c.m. On the back of the mid of the chest 2 inches below and right to the injury No,1.1. Corresponding cut was present on the Qamiz.
(13) A wound of exit 1.5 c.m. x 1.2 c.m. On the back of the mid of the chest 2 c.m. Towards the right side of injury No,12. Corresponding cut was present on the Qamiz.
(14) A wound of exit 2 c.m. x 1 c.m. In the left axilla. Corresponding cut was present on the Qamiz.
(15) A wound of exit 1.5 c.m. x 1.5 c.m. In the left axilla 1 c.m. Below injury No,14.
' In his opinion, cause of death was shock and hemorrhage due to injuries mentioned above, which were ante-mortem in nature and had been caused by fire-arms and were sufficient to cause death in the ordinary course of nature. He removed three pellets, sealed in a phial and handed over to the Police. He gave the time between injuries and death as instantaneous whereas between death and post-mortem examination two to three hours. After the post-mortem examination, he handed over the last-worn clothes of the deceased as well as said documents to constable. Javed Akhtar (P.W.10) deposed that on 17-8-1990 accused Nasrullah led to the recovery of .12 bore carbine and 6 cartridges, which were secured and made into separate parcels vide memo. Exh.P.G. That on 20-8-1990 accused Muhammad Aslam led to the recovery of pistol P.6 and six live bullets P.7/1-6 which were made into separate parcels vide memo. Exh.P.H. Khalid Shaheed (P.W.11) deposed about killing of the deceased at the hands of Muhammad Aslam alias Siana at the instance of Muhammad Idrees and Hanif. Muhammad Rauf Anwar (P.W.12) is the complainant of this case and corroborated his version appearing in F.I.R. Exh.P.J. He stated that other witnesses had also identified Muhammad Aslam accused in the identification parade supervised by M.I.C. He also deposed about conspiracy between Idrees and Hanif regarding committing of murder of the deceased at the hands of Muhammad Akhtar alias Siana. Javed Aslam Kahloon (P.W.13) is an eyewitness of this occurrence and corroborated prosecution version which has come on record through the statement of complainant Muhammad Rauf Anwar (P.W.12). He deposed that on 28-8- 1990 he identified Muhammad Aslam accused in the identification parade, that he joined the investigation and in his presence Police secured blood-stained earth vide memo. Exh.P.K., two empties of cartridges and two empties of pistol vide memo. Exh.P.L., a pair of Chapel of the deceased P.9/1-2 vide memo. Exh.P.M., motorcycle Exh.P.I. And pieces of back light Exh.P.10 vide memo. Exh,P.N. Ahmad Javed Chaudhry, Inspector Highway (P.W.14) deposed about investigation of case pertaining to F.I.R. No,98 of 1990 under section 13/20/65, Arms Ordinance against accused Idrees. Tariq Mehmood Chaudhry (P.W.15) is the Investigating Officer whose evidence has already been discussed above. The learned D.D.A. Produced copies of F.I.Rs, Nos.259 and 98 of 1990, Exh.P.S. And Exh.P.T., copies of orders of discharge Exhs.P.U. And P.V., Report of Chemical Examiner Exh.P.W., report of Serologist Exh.P.X., Report of Forensic Science Laboratory, Lahore Exh.P.Y. And closed the case for prosecution vide statement, dated 1-3-1992.
7. When examined under section 342, Cr.P.C. Accused Muhammad Idrees, Muhammad Aslam, Lal Khan, Muhammad Hanif Nasrullah and Wali Muhammad denied the prosecution version and stated that they have been involved in this case falsely. They examined D.W.1 Khadim Husain, D.W.2 Muhammad Nawaz, Head constable, D.W.3 Ijaz Hussain, In charge Judicial Lock-up, Toba Tek Singh, D.W.4 Ghulam Askari, Head constable, D.W.5 Muhammad Hanif, D.W.6 Muhammad Munir, Head constable, D.W.7 Dr. Muhammad lqbal and D.W.8 Muhammad Iqbal and thereafter, closed their evidence.
8. Upon culmination of trial, the appellants were found and adjudged guilty of the offences, with which they were charged, convicted and sentenced to death with a fine of Rs,50,000 each and in default thereof to suffer R.I. For two years each. They were further directed to pay compensation in the sum of Rs,50,000 each to the legal heirs of deceased. The Trial Court, however, acquitted Muhammad Idrees, Muhammad Hanif, Lal Khan and Wali Muhammad by extending benefit of doubt.
9. Such conviction and sentence awarded to the appellants stands challenged in the instant Appeal No,388 of 1992. Reference under section 374, Cr.P.C. (Murder Reference No,204 of 1992) for the confirmation of death sentence is also before us and so also Criminal Revision.No,551 of 1992 against the acquittal of accused and we propose to dispose of all these by this single judgment.
10. Learned counsel for the appellants, the State and the complainant have been heard and record of the case perused with their assistance.
11. Learned counsel for the appellants has argued that case against the present accused- appellants rests upon ocular statements of Muhammad Rauf Anwar complainant (P.W.12) and Javed Aslam Kahloon (P.W.13), that name of Nasrullah accused-appellant appears in F.I.R. Exh.P.J.
Lodged at the instance of complainant Muhammad Rauf Anwar (P.W.12) whereas name of Muhammad Aslam accused-appellant does not figure in the said F.I.R.; that Muhammad Aslam accused-appellant has been involved as he was subsequently identified in the identification parade held on 28-8-1990 under the supervision of Muhammad Shahid Javed, M.I.C. (P.W.2). He next argued that evidence against the accused-appellants also consists of recovery of carbine P.4 which was taken into possession at the instance of Nasrullah on 17-8-1990 vide memo. Exh.P.G. And of pistol P.6 taken into possession at the instance of Muhammad Aslam on 20-8-1990 vide memo.
Exh.P.H. He next argued that prosecution has also tried to corroborate ocular evidence by producing motorcycle P.8 and pieces of back light of motorcycle P.10.
12. While analyzing the ocular account given by P.W.12 Muhammad Rauf Anwar and P.W.13 Javed Aslam Kahlo on, he contended, that according to their statements the deceased was fired at by Muhammad Akhtar alias Siana accused (since dead) and Nasrullah accused-appellant, that statements of P.Ws.12 and 13 stand contradicted by the statement of Dr. Muhammad Khalid (P.W.9), who found 15 injuries on the person of deceased, out of which injuries Nos.1 to 5 and 8 to 10 were wounds of entry whereas injuries Nos.11 to 15 were wounds of exit and the remaining injuries Nos.6 and 7 were abrasions, that nature of injuries on the person of deceased clearly shows that these have been caused by one and the same fire-arm which fact makes the presence of other accused doubtful.' He next urged that even the presence of Javed Aslam Kahlo on (P.W.13) is not from free doubt. That as per statement of Javed Aslam Kahloon (P.W.13), he was carrying the deceased on the rear seat of his motorcycle at the time of alleged occurrence and the distance between him and the deceased was only 3/4 inches and lower part of his (deceased) body was touching his body. He argued that if the lower portion of the body of the deceased was touching the body of Javed Aslam Kahlo on, how he escaped from receiving any injury at that time, that absence of any injury on the person of Javed Aslam Kahloon (P.W.13) clearly shows that either the deceased was not travelling on his motorcycle or P.W.13 was not driving that motorcycle. He further argued that as per prosecution version, one shot hit the backlight of motorcycle resulting into breakage of rear light. That prosecution has brought on record pieces of broken light as Exh.P.10/1 as well as the light Exh.P.10. That it has been admitted by P.W.13, that piece of broken light Exh.P.10/1 is not of the same material of which light Exh.P.10 is made of. This contradiction also raises a genuine doubt about the use of motorcycle on the part of deceased as well as the presence c P.W.13. The presence of P.W.13 also becomes doubtful, he further argue J, when his statement under section 161, Cr.P.C. Is perused, where he has not even given the marks of identification of Muhammad Aslam accused, that has been admitted by Tariq Mahmood, Inspector (P.W.15) that no evidence was available on record, when Muhammad Aslam accused was arrested. He thus, concluded that all these facts clearly prove that prosecution has failed to connect the accused with the commission of this offence and impugned judgment is not sustainable. He, thus, prayed that appeal may be accepted and accused-appellant be acquitted.
13. On the other hand, judgment under appeal has been supported by learned counsel for the State as well as the complainant.
14. The instant case F.I.R. Exh.P.J. Has been registered on the statement of complainant Muhammad Rauf Anwar (P.W.12). A perusal of F.I.R. Shows that names of Akhtar alias Siana and Nasrullah appear therein, whereas name of Muhammad Aslam accused does not figure therein. Even his marks of identification are not given by the complainant, as he (Muhammad Aslam accused) was not known to him previously and this fact is admitted by him while appearing in the witness-box.
This accused was arrested by Tariq Mahmoud, Inspector (P.W.15) on 20-8-1990 and was put to identification test on 28-8-1990. It has come on record that since the day of his arrest, no precautionary measures were adopted to conceal his identity. This being the position, no value can be attached to identification parade conducted under the supervision of Muhammad Shahid Javed (P.W.2) and his report Exh.P.B. Thus, the very involvement of Muhammad Aslam accused is not above-board.
15. So far as presence of Javed Aslam Kahloon (P.W.13) at the time of occurrence is concerned, that is also not free from doubt. As per admission of P.W.13, the deceased was sitting at a distance of 3/4 inches from him and whose body was touching his body. It is very strange that the deceased was sitting at a distance of 3/4 inches from P.W.13 but neither any pellet nor any bullet hit him (P.W.13). The only logical inference is that either Javed Aslam Kahloon (P.W.13) was not driving the motorcycle or the deceased was not sitting with him at the relevant time. Even the use of motorcycle by P.W.13 is not free from doubt. As per his statement, one of the shots hit the back lighe- as a result of which it broke. Prosecution has produced the broken back light Exh.P.10 and piece of the same Exh.P.10/1. It is admitted by P.W.13 that piece of broken light Exh.P.10/1 does not tally with the broken light P.10. This admission on his part also raises suspicion about the presence of P.W.13 as well as the use of motorcycle. It appears that motorcycle has been introduced just to make the presence of Javed Aslam Kahloon (P.W.13) on the spot and to make him an eyewitness. It is also admitted by P.W.13 in his statement Exh.D.A. Recorded under section 161,. Cr.P.C. That he did not state therein that back light of his was as broken.
16. The upshot of the above discussion is that prosecution has failed to prove the very presence of both the accused-appellants at the time of occurrence, as such the appeal is accepted, impugned judgment is set aside and they are hereby acquitted. They shall be released forthwith if not required in any other case. Accordingly, Murder Reference is answered in negative and Criminal Revision No,551 of 1992 is also dismissed.