' This judgment will dispose of Criminal Appeal No, 807/1992 (Shafqat Ali v. The State) Criminal Revision No,742 of 1991 (Muhammad Nazir v. Nawazish Ali, etc.) and Criminal Revision No,658 of 1992 (Muhammad Nazir v. Shafaqat Ali) as all these matters arise out of the same incident and involve common questions of law and facts. ,
2. Briefly, the facts leading to the appeal and two revision petitions as transpired from the F.I.R. Are that on 28th June, 1989, at about 4.30 p.m. While Muhammad Nazir son of Nawab Din, the complainant, was going out of his village on the metalled road, he saw Shafqat Ali armed with carbine and Nawazish Ali armed with a pistol standing in front of the house of Bashir son of Rehmat Ullah on its western side. At that time Muhammad Razzaq son of Inayat Ali was coming towards village on a cycle. When Muhammad Razzaq reched near Shafaqat Ali, he fired upon Muhammad Razzaq with his carbine. The bullet hit Muhammad Razzaq outer-side of his left arm bi-ceps {{URDU TEXT}} and several pellets pierced therefrom to his chest. Muhammad Razzaq thereupon fell down from the cycle. Initially, he got up and ran toward east on the land of Ghulam Haider son of Chooharr Khan where bareley crop was standing but soon after he again fell down. Both Shafaqat Ali and Nawazish Ali followed him and Nawazish All fired several shots upon Muhammad Razzaq with his pistol causing injuries at his stomach, chest and abdomen The incident was also seen by Muhammad Bashir son of Sultan and Muhammad Siddique son of Muhammad Hussain. When they .Reached near Muhammad Razzaq, they found him dead and the assailants thereupon ran away from the spot.
3. The complainant stated that the motive of causing death of Muhammad Razzaq by Shafaqat Ali and Nawazish Ali accused was that about 4/5 months back Muhammad Razzaq deceased had obtained blades for his fodder-cutting machine from one Rehmat Ullah. Shafaqat Ali, the appellant, asked for return of the blades but Muhammad Razzaq deceased refused to do so on the ground that the blades belong to Rehmat Ullah. This led to an altercation between Muhammad Razzaq, Shafaqat Ali and Nawazish Ali, Muhammad Razzaq was supported by his brother ljaz, Shafaqat All and Nawazish Ali on the indulgence of the brother of the deceased left the place and were followed by Muhammad Razzaq alongwith his brother who challenged them to come out of the house and face the dire consequences. Shafaqat All and Nawaziash All later on through their maternal uncle apparently resolved the matter amicably with the parents of Muhammad Razzaq. Both of them, however, kept grudge and on finding an opportunity had murdered Muhammad Razzaq. According to the autopsy conducted by Dr. Tahir Rashid (P.W.5) the deceased had suffered nine fire-arm injuries and one injury with blunt weapon. The two fire-arm injuries caused at the chest of Muhammad Razzaq had proved fatal.
4. The case was investigated by Ch. Muhammad Asghar, Inspector/S.H.O., Police Station, Jalalpur Jattan, Ch. Abdul Majeed Kiani, D.S.P. (Headquarters), Gujrat, Ahmad Zaki, D.S.P. And Nazir Baig, S.I., Police Lines, Gujranwala. Both Shafaqat Ali (appellant) and Nawazish All were arrested on the same day i,e, on the 18th July, 1989.
5. Nawazish Ali, an employee of the National Finance Corporation, Gujrat, accused took the plea that for the last 7/8 years, he was residing in Gujrat and in particular, at the time of the alleged occurrence he was present in village Gunianwala, Tehsil Wazirabad. The Investigating Officers accepting the evidence produced by Nawazish Ali in support of his plea of alibi and held him to be innocent. Consequently, the Illaqa Magistrate discharged Nawazish All of the offence. Muhammad Nazir complainant thereupon filed a private complaint on the 6th November, 1989, in result of which both Nawazish Ali and Shafaqat All were summoned and charged for causing death of Razzaq son of Inayat Ali was framed against them. In the meanwhile, Shafaqat accused absconded. The complainant thereupon moved for withdrawal of his complaint submitting that since Newazish Ali will be considered to have been summoned in the State case and same evidence would be produced against both the accused, there was no necessity to continue the proceedings in the complaint. The Trial Court accepted the claim of the complainant particularly as no objection was raised on behalf of the State and allowed Muhammad Nazir complainant to withdraw the complaint. Consequently, Nawazish All .Was tried separately. The prosecution produced fourteen witnesses in support of its case, but the learned Additional Sessions Judge, Gujrat, who had tried the case, by his order, dated the 29th September, 1991, held that the prosecution had failed to prove its case against Nawazish Ali beyond reasonable doubt. He, therefore, acquitted Nawazish Ali accused by giving him the benefit of doubt.
6. Shafaqat Ali, the present appellant, was subsequently re-arrested and was tried separately after quite a few months from the conclusion of the trial of Nawazish Ali, the acquitted accused. This time, the prosecution produced sixteen witnesses. P.W.1 Muhammad Afzaal, Constable testified about delivering of sealed parcel containing blood-stained earth to the Chemical Examiner, Lahore, on 3-8-1989 although in his statement recorded under section 161, Cr.P.C the date of delivery of parcel was stated to be the 5th August, 1989. P.W.2 Mazhar Hussain, A.S.I. Who was working as Moharrir, Head Constable of Police Station Saddar, Jalalpur Jattan, on the day of occurrence, deposed that on the 29th June, 1989, Investigating Officer had handed over him a sealed parcel containing blood-stained earth which he kept in Malkhana and delivered it to Muhammad Afzal P.W.I on 2-8-1989 for onward transmission to the Office of Chemical Examiner, Lahore, Muhammad Ashraf Patwari (P.W.3) produced site plans Exh-PA and Exh.P1 of the place of occurrence prepared under the directions of the Investigating Officer. Zafar Ullah, SI (P.W.4).Who was posted as Moharrir, A.S.I.-at Polcie Station Jalalpur Jattan in June, 1989, deposed that on 6-6- 1989, he had on receipt of the complaint Exh-PB recorded formal F.I.R. (Exh. PB/I) which also bears his signatures.
' Dr. Tahir Rashid, Medical Officer (P.W.5) had conducted the post-mortem of Muhammad Razzaq deceased on 29-6-1989 at 10.00 a.m. During his posting as Medical Officer, A.B.S. Hospital; Gujrat.
According to his report the deceased had suffered the following external injuries:--
(i) A fire-arm wound of entry measuring 2 c.m. x 1/1/2 c.m. x DNP inverted circular margins on right side of front lower chest 3 c.m. Right lateral to xiphisternum II c/m. Medial and below the right nipple.
(ii) 'Five fire-arm wounds of entry each measuring 1 c.m. x 1 x DNP with inverted circular margins on left front and lateral aspect of left upper chest. They lie in an area of 8 c.m. x 8 c.m., the lower one was 4 c.m. Above and lateral to left nipple. Three lie in line with each other in verticle position 2-1/2 c.m. Apart. Two lie in line with interior axillary fold, left and vertically paste. The upper one is 6 c.m.
Below left anterior fold.
(iii) A gutter shaped wound measuring 2 c.m. x 1/2 c.m. x 1/2 c.m. On left front of chest. It was horizontally placed 3 c.m. Above left nipple.
(iv) Nine fire-arm wounds of entry on left lateral aspect of middle of upper arm 8 c.m. Above the lateral condyle of humerus. Each wound measuring 1 c.m. x 1 c.m. x DNP with inverted circular margins. They lie in area of 6 c.m. x 6 c.m.
(v) Seven fire-arm wounds of exit each measuring 2 c.m. x 2 c.m. On left medial aspect of left middle of upper arm margins were reverted. They lie in an area of 8 c.m. x 8 c.m.
(vi) Fire-arm wound of entry measuring 1 c.m. x 1 c.m. x DNP on right side of lower abdomen on lateral aspect 5 c.m. Above the righter anterior superior iliac spine. The margins of the wound were circular and inverted.
(vii) A fire-arm wound of exit measuring 1-1/2 c.m. x 1-1/2 c.m. With Everted margins on right back of lower abdomen 3 c.m. Right to vertebral columns 14 c.m. Lateral and back to right anterior, superior iliac spine.
(viii)Fire-arm wound of entry 1 c.m. x 1 c.m. x DNP on right lumber region 8 c.m. Above and lateral to injuries Nos. 7 and 8 c.m. Lateral to vertebral column. The margins were inverted and circular in shape.
(ix) Fire-arm wound of entry measuring 1 c.m. x 1 c.m. x DNP on left lumber region 9 c.m. Later to vertebral column and 20 c.m. Below the inferior angle of scapula, left. The margins were circular and inverted.
(X)A superficial abrasion measuring 1 c.m. x 1 c.m. On left dorsum of hand towards the left little finger 2 c.m. Below the left wrist joint.
8. On dissection of left upper arm, Dr. Tahir Rashid found comminutted fracture of left humerous with damage to all the underlying vessles nerves and muscles. The fore-arm was hanging because of badly damaged left 'upper arm middle part, P.W.5 further stated that four metallic pieces after piercing the chest cavity on left front chest had entered into the pleural cavity through 4th, 5th and 6th inter-costal spaces and ruptured the left lung. One metallic piece was removed subcutaneously and two metallic pieces were removed from the chest cavity. One metallic piece ruptured the opposite side of the pleaural cavity and perforated the right lung before rupturing the left ventricle of heart. It damaged the heart and right lung and lied in the right lung which was removed. Walls, ribs and cartilages damaged to 4th, 5th and 6th intercostal spaces, Pleaurae right and left lungs were damaged. Pericardium and heart were empty but damage was caused to the left ventricle of the heart. One metallic piece pierced the 12th thorazic vertebrae and damaged the spinal cord.
9. In the opinion of Dr. Tahir Rashid (P.W.5) all the injuries were ante-mortem, caused by fire-arms except injury No,(x) which was caused by blunt edged weapon. Injuries Nos. (i) and (ii) were sufficient to cause death due to injury to the heart. Both the lungs led to haemorrhage and shock in the ordinary course of nature. All other injuries were contributory to death except injuries Nos. (iii) and (x).
10. Constable Waseeni Asghar (P W.6) had taken the dead body of Muhammad Razzaq deceased to A.B.S. Hospital, Gujrat, for post-mortem examination on the 28th June, 1989. On the following day, Medical Officer handed over him the last worn blood-stained clothes of the deceased and sealed phial containing metallic pieces which he delivered to the Investigating Officer vide recovery memo. Exh. PD. Allah Ditta (P.W.7), a maternal uncle of the deceased, testified that he had identified the dead body of Muhammad Razzaq. Ijaz Ahmad (P.W.8), elder brother of deceased Muhammad Razzaq deposed that about 4-5 months back prior to the occurrence, he brought blades of fodder- cutter machine from Rehmat Ullah son of Mian Khan and fixed them with his fodder machine. After sometimes, Nawazish Ali and the present appellant came to their dera and asked for return of the baldes but Muhammad Razzaq deceased refused to do so, whereupon an altercation ensued and Nawazish Ali and Shafaqat Ali left the place. P.W. 5 and Muhammad Razzaq (deceased), however.
Followed them but Nawazish Ali and the present appellant bolted themselves inside their house.
Ijaz Ahmad (P.W.8) and the deceased challenged Nawazish All and Shafaqat All to come out of the house and face ,them. In the meanwhile, several persons gathered at the spot and called them off After two days Mehdi Khan and Muhammad Sadiq, the maternal uncles of the appellant, came to the village and got the matter amicably settled. But Shafaqat Ali and Nawazish Ali kept the grudge and killed Muhammad Razzaq because of such grudge. Muhammad Nazir (P.W.9) who is also the uncle of Muhammad Razzaq deceased supported the averments made by him in the F.I.R. {{PAGE CUT}}
11. Muhammad Bashir (P.W.10) stated that on the day of occurrence at )out 4.30 p.m. He alongwith Muhammad Siddique Was coming towards the illage and saw Shafaqat Ali and Nawazish Ali in front of the house of Bashir m of Rehmat Ullah. At that time, Muhammad Razzaq reached there riding on a (de. Shafaqat Ali appellant who was armed with a carbine fired at Muhammad azzaq hitting him on the left upper arm and left side of the chest. Muhammad azzaq fell down from the cycle and then ran towards east in the barely field. Oth the accused followed him and Nawazish All fired indiscriminately upon the :teased hitting him on his right flank, back belly and the chest. Both the :cused thereafter ran from the spot. During cross-examination, he admitted his qationship with P.Ws. And that the appellant had earlier injured his nephew and I the said case Muhammad Nazir and Siddique (P.W.4) had appeared as itnesses against the appellant. Faiz Ahmad (P.W.11) deposed about verifying te recovery Exhs. PE and PF regarding recovery of cycle belonging to luhammad Razzaq and the blood-stained earth (p.5) from the place of :currence.
12. Nazir Baig, S.I. (P.W.12) deposed that after the transfer of S.H.O. Once Station Saddar, Jalalpur Jattan, he took up the investigation of the case om 18-7-1989 onward and caused arrest of Shafaqat Ali and Nawazish Ali ;cused in the case on the 21st July, 1989. At the instance of Shafaqat Ali ;cused a carbine P-6 was recovered from his house vide recovery memo. Exh.- G. During cross- examination, he, however, admitted that he had not called any arson from the neighbourhood at the time of recovery of the carbine and that e recovery witnesses had accompanied him to the place of recovery from the )lice station. He also admitted that during the investigation many persons, chiding residents of the houses adjoining to the place of occurrence and village id appeared before him and it came into his knowledge that in fact the ceased was done to death at night time by unknown persons' and that the cused in the case had been involved only on the basis of previous enmity'. Isharat Hussain Shah, ASI (P.W.13) testified only that he had brought tafaqat appellant who was confined to Camp Jail, Lahore, Gujrat on 3-3-1992. Ustahsam, a foot constable (P.W.14), deposed about execution of proclamation xh.14-C) regarding apprehension of the appellant.
13. Muhammad Nawaz, D.S.P., appearing as P.W. 15 stated that on -7-1989, while he was posted as Inspector/S.H.O., Police Station Saddar, alpur Jattan, he had carried out the investigation in the present case and had errogated the appellant when he was in police custody. On the 28th July, 89, the appellant had also led the police party to the recovery of a .32 bore 'olver (Exh.P6) from his Dera. During cross-examination, he deposed that or to entrustment of the investigation to him, the investigation was carried out Muhammad Ashraf, Inspector/S.H.O. And Mirza Muhammad Nazir, S.H.O. After his (P.W.15) transfer, the case was investigated by Ahmad Zaki, DSP I Abdul Majid Kiani D.S.P., Gujrat. In all these investigations, 'version of the prosecution was found false so far as the case of Nawazish Ali accused was concerned'. Ch. Muhammad Ashraf, a retired Inspector/S.H.O.
(P.W.16), had initially investigated the ease and completed the formalities in particular, he took into possession the blood-stained earth and blood-stained clothes of the deceased, caused preparation of the sealed parcels thereof for examination by the Chemical Examiner and got the post-mortem examination carried out by the concerned Medical Officer. During cross- examination, he stated that in course of the investigation, 'the version of the complainant side was found false that the murder was committed by two persons'. But only Nawazish Ali accused was declared innocent and Shafaqat Ali was found guilty. He, however, admitted that no blood was found at the place where the deceased was initially injured by the accused.
14. The statement of the appellant was also recorded under section 342, Cr.P.C. Wherein he denied the charge. He also denied the recovery of carbine P-6 and revolver P-7 from him. Initially, an objection was raised that this statement of the appellant was not signed by the learned Trial Court.
In view of the said objection of the appellant, learned Additional Sessions Judge, Gujrat, was summoned in the Court. He explained that the High Court had directed for expeditious disposal of the case and because of rush of the proceedings, he had omitted to sign the statement. At the time Of hearing of appeal, learned counsel for the appellant did not press the issue. Ti was, however, vehemently claimed by the learned counsel that both the eye-witnesses i,e,, Muhammad Nazir P.W.9 and Muhammad Bashir P. W.10 were closely related to the deceased and inimical to the appellant. The statements of these witnesses were also not corroborated by the medical evidence, hence, no credence could be given to their testimony. He also referred to the statements of the Investigating Officers claiming that during the investigation it was clearly found out that the prosecution version was false and the appellant and Nawazish All accused (since acquitted) were roped in only because of previous enmity between the parties. The learned counsel representing the appellant also pointed out various defects in the investigation, particularly its failure to produce the report of Serologist and the Ballistic Expert for verification of the blood on the alleged blood- stained earth and clothes and also for distinguishing the varies of wounds which were allegedly caused by two different weapons.
15. Mian Sher Aalam, Advocate, counsel for the complainant and Mr. Abdul Qayyum Anjum, Advocate for the State opposed these contentions claiming that the F.I.R. Was recorded immediately after the occurrence. There was no inconsistence between ocular account and the medical evidence. Nor the appellant had pointed any material contradictions in the statements of the eye-witnesses. It was also urged that blood-relationship of witnesses with the deceased was not a disqualification. It was further contended on behalf of the complainant who is also petitioner in two revision petitions that acquittal of Nawazish Ali accused was not justified and that he should have been convicted under section 302 of the Pakistan Penal Code and sentenced to death.
16. Nevertheless, no substantive defect was pointed out in the findings of the learned Additional Sessions Judge, dated 29-9-1991, whereby he had acquitted the said Nawazish Ali. The eye- witnesses and other material witnesses in both the trials were the same. In the earlier trial in which only Nawazis Ali was tried, the prosecution version was not, believed. Meaning thereby that the eye-witnesses who, in the trial of Nawazish Ali, were not believed to be the truthful witnesses, cannot be said with certainty that they (P.Ws. 9 and 10) had told the truth during the trial of present appellant relating to the same incident.
17. There is a unanimity of opinion that the present appellant had fired once only and the bullet had hit at the back of left arm bi-ceps. Both the witnesses have claimed that this fire shot had pierced through bi-ceps and pellets therefrom caused injury on the chest of Muhammad Razzaq. But according to post-mortem examination and the opinion of Dr. Tahir Rashid (P.W.5) injuries Nos.(iv) and (v) as specified in paragraph 7 above relate to the injury caused at the arm of Muhammad Razzaq deceased. On the other hand, the death of Muhammad Razzaq deceased had been caused, due to injuries received by him at his chest. Dr. Tahir Rashid, P.W.5, clearly stated during his examination that injury No,(v) had no re-entry wound on the body of the deceased. Meaning thereby that the bullet which had hit the bi-ceps of the left arm of Muhammad'Razzaq deceased had not entered therefrom to the chest of the deceased nor it had caused the fatal injury. It is in the.Statements of the eye-witnesses that the appellant had fired upon the deceased from the distance of 3/4 feet, but there was no blackening of the wound reported in the post-mortem examination of the body of the deceased.
18. According to the prosecution, two different types of fire-arms i,e,, carbine and a pistol were used for causing death of Muhammad Razzaq deceased, but surprisingly it appears that the pellets and empties were not sent to the Ballistic Experts for expert opinion as to bullet of which fire-arm had actually caused the death of Muhammad Razzaq deceased. In fact, no evidence has been brought on the record of any empty was recovered from the place of occurrence.
19. It is the case of the prosecution that the present appellant had hit Muhammad Razzaq deceased with his carbine at the road side. On the other hand, it was as stated by Ch. Muhammad Ashraf (P.W.16) that no blood was found at the place where the deceased received the first injury and had thereupon fallen down from the cycle. In view, thereof, there is a clear inconsistence of the medical evidence with the ocular account produced by the prosecution.
20. It is an admitted fact that the occurrence had taken place near an abadi where there were several houses having a population of 7/8 hundred people but surprisingly no person from the abadi was produced in support of the prosecution version. Ch. Muhammad Ashraf (P.W.16), the Investigating Officer, also admitted that at the time when he reached at the spot on receipt of the information of the incident, several persons had gathered there and he had recorded their statements under section 161 of the Cr.P.C. But surprisingly no such person was produced as a witness nor any reason has been given as to why those persons who were independent witnesses were kept away from appearing before the Court. Even the inmates of the house of Bashir son of Rehmat Ullah in front of whose house occurrence had taken place were not produced.
21. The same principle applies to the recovery of carbine P-6 and Pistol P-7 as none of the residents of the locality was asked to witness the recovery of these Articles in clear disregard of the provisions of section 103 of the Code of Criminal Procedure which fact itself makes the recovery of the weapons doubtful. According to the statement of the Investigating Officer (P.W.16), the deceased, was lying dead in the barely field. The height of the barley crop was about 3 feet and the witnesses had seen the occurrence from outside the field. In the process, quite a portion of the crop must have been trampled, but admittedly no reference to that effect was made by the Investigating Officer in his inspection note. On the other hand, he admitted during cross- examination that no blood was found on any barley plant. When according to the Investigating Officer, no blood was found at the place where the deceased had fallen after receiving the first shot on the road nor any blood was found at the barely field, the whole procedure of collection of blood-stained earth appears to be false and concocted. These discrepancies clearly lend support to the fact that the occurrence had not taken place in the manner as has been putforth by the prosecution and the two eye-witnesses, namely, Muhammad Nazir (P.W.9) and Muhammad Bashir (P.W.10). The motive also appears to be doubtful as the altercation in respect of blades of fodder- cutting machine had taken place about 4/5 months back to the occurrence. It is obviously quite a long time to take revenge of someone's insult.
22. In view of the above discussion, it is clear that the prosecutions has failed to prove the case against Shafaqat Ali appellant beyond any doubt. Consequently, the judgment, dated 13-8-1992 is set aside and giving the benefit of doubt to Shafaqat Ali, appellant, he is thus, acquitted of the charge. The appeal is accordingly accepted. The appellant be released forthwith if he is not required in any other case. In consequence thereof, the Criminal Revision No,658 of 1992 entitled Muhammad Nazir v. Shafaqat Ali, is dismissed.
23. Likewise Criminal Revision No,742 of 1991 is also dismissed as the petitioner/complainant has failed to bring any defect in the finding of the learned Additional Sessions Judge, dated 29-9-1991, whereby Nawazish Ali respondent was acquitted of the charge of causing death of Muhammad Razzaq, deceased.