ASLAM RIAZ HUSAIN, J.-This appeal by Allah Yar, complainant, is directed against the judgment of a Division Bench of the Lahore High Court dated 16th of January, 1974, whereby the accused respondents were acquitted and their convictions and sentences under sections 148 and 302!149, P.
P. C. Were set aside.
2. The nine respondents, namely, Rajba, Zahoor, Muhammad, Nasir, Basara, Sattar, Sarwar, Allah Ditta and Hamand were accused, along with Lalu absconder, of having murdered Abdus Sattar, Chakkar and Shamira on 12th of August 1959. Since Lalu had absconded, the respondents were tried for offences under sections 148 and 302/149, P. P. C. By the learned Additional Sessions Judge (I), Sahiwal, who convicted all of them inter alia, of the said offences and sentenced Rajba, Zaboor and Nasir to death under section 302/149, P. P. C. And the remaining five to imprisonment for life under the said section and all of them were sentenced to three years' R. I. Under section 148, P. P. C.
All the convicts filed an appeal. The High Court accepted the appeal and acquitted the appellants (respondents herein) and set aside their convictions and sentences vide the impugned judgment.
Allah Yar, complainant, has now filed the present appeal against their acquittal.
3. The motive for the offence is slat-.d to be that Sardar, the brother of Basara respondent had been murderedyears before the present occurrence. Allah Yar (complainant) and his brother Muhammad Yaqub were challaned and tried for the said murder. Allah Yar was acquitted on the 16th of January 1969, but Muhammad Yaqub was convicted and sentenced to death. The appeal of Muhammad Yaqub was pending in the High Court when, on 12th of August 1969, in order to avenge the murder the respondents who are relatives of Sardar (deceased) attacked Allah Yar and his companions with guns and hatchets and killed three persons, namely, Abdus Sattar Chakkar and Shamira.
4. The facts of the case as stated in the F. I. R. Are briefly that on the 12th of August 1969 the three deceased, i. e., Chakkar, Abdus Sattar and Shamira, along with Karam A.I P. W. 8 went to Sahiwal Jail to have an interview with the aforementioned Muhammad Yaqub. On, the same day after the aforementioned persons left for Sahiwal, Allah Yar P. W: 7, the brother of Yaqub, proceeded to village Sheikh Fazal along with Qutab P. W. 9 and Dara, as Qutab P. W. Had to purchase a buffalo from that village. When they reached the said village and met the person from whom Qutab P. W.
Had to purchase the bufallo they were informed that the buffalo had already been sold. They therefore started back for their own village (Chak No. 106/EB). Just as they reached the bridge of Rajba in the area of Chak No. 102/EB at about 5 p. m. a bus came up from which Chakkar, Abdus Sattar and Shamira (the three deceased), Karam A.I P. W. And Allah Yar (not produced) alighted.
From there all eight of them proceeded to their village on a Kacha road. At about 6 p. m. When they reached near the graveyard of Chak No. 102/E B the nine respondents and Lalu absconder suddenly emerged from the sugarcane field. Rajba and Lalu were armed with '12 bore shot-guns, Zahoor respondent was armed with a '12 bore pistol, Muhammad and Nasir respondents were armed with '303 and 7 mm rifles, respectively, while Basara, Sarwar, Allah Ditta and Hemand respondents were armed with hatchets. They raised a lalkara saying that they had come to avenge the murder of Sardar. Thereafter Lalu and Nasir respondents fired at Chakkar (deceased) with their guns and rifle respectively. Chakkar was hit and fell down, Muhammad and Nasir then fired with their rifles at Abdus Sattar deceased. He too was hit and fell down. Rajba and Zahoor respondents then fired at Shamira (deceased) who also fell down on being hit. Basara and Hamand respondents then inflicted hatchet blows on Chakkar who lay fallen on the ground, and chopped off his head. Sttar, Sarwar and Allah Ditta respondents inflicted hatchet blows on Abdus Sattar (deceased) and also chopped off his head. Thereafter all the accused removed the clothes of Chakkar (deceased) and Abdus Sattar (deceased) and ran away along with the clothes and the heads of the two deceased. They also took their respective weapons with them.
5. While Qutab P. W., Karam A.I P. W., Dara. And Ahmad Yar remained with the dead bodies, Allah Yar P. W. 7 left for the police station to lodge the report. He reached the Police Station, Gaggo at about 9 p. m. And lodged the report which was recorded by Faizul Hasan S. I./S. H. O. (P. W. 17). He then accompanied Allah Yar to the place of occurrence, reaching there at 10-30 p. m. Amongst other things, he prepared the injury reports and inquest reports of the three deceased, sent the dead bodies for post-mortem ; inspected the place of occurrence and collected blood-stained earth from three different places where the three deceased lay dead. He also took into possession ten empty cartridges from different places near the place of occurrence. Out of these two were empty cartridges of 7 m.m. Rifle, three were empty cartridges of '303 rifle and five were empty cartridges of .12 bore gun. These were taken into possession vide Memo. Exh. P. J. Which, apart from Faizul Hasan S. I. (P. W. 17) was witnessed by Allah Yar (P. W. 7) and Ch.Nazir Ahmad (not produced).
6. On the same day Muhammad Shafi F. C. (P. W. 15) brought the clothes of the deceased from the hospital where the dead bodies had been sent for post-mortem examination. He also brought three phials, i. e., phial P. 11 containing 8 pellets extracted from the body of Shamira deceased, phial P. 12/1 containing cork and phial P. 12/2 containing two bulled pieces which were extracted from the body of Abdus Sattar deceased.
7. Next day on the 14th of August 1969 Nauroz A. S. I. Arrested the nine respondents. Oh the same day one A.I Muhammad diver recovered shirt P. 13, at the instance of Allah Ditta respondent from the Pakpattan canal in the area of Chak No. 102/E. B. Which was taken into possession by the S. I. On the 16th of August 1969. While in custody on the. 16th of August 1969 Rajba, respondent, led to the recovery of a gun P.I from his residential kotha. Blood-stained hatchet P. 2 was recovered from the Kotha of Sattar, pistol P. 3 was recovered at the instance of Zahoor from his residential Kotha a .303 rifle, P. 5, was recovered at the instance of Muhammad respondent from his residential Kotha and a 7 mm. Rifle P. 6 was recovered at the instance of Nasir respondent from his residential Kotha. These were taken into possession vide Memo. Exh. P. F. A blood stained hatchet, P. 4, was recovered at the instance of Allah Ditta from his residential kotha, which was takes, into possession vide Memo. Exh.
P. D. These recoveries were made by Faizul Hasan S. I. P. W. -17 in the presence of Farid (P. W. 10) and Sajawar (not produced).
8. Dr. Muhammad Iqbal P. W. 1 who performed the post-mortem examination found the following .Injuries on the person of Abdus Sattar deceased
(1) Multiple incised wounds at the lower part of the neck cutting away the neck and head completely which were absent (post-mortem injury).
(2) Three incised. Wound 2' x -- ' each on the front and back of the right shoulder.
(3) Incised wound 3' x 1 -- ' x 2' deep on the back of the upper part of the left chest cutting underneath the muscles and scapula bone.
(4)
2. Incised wounds on the front of the left shoulder 2 --x 2' muscle deep each.
(5) Gun shot lacerated wound 1 -- ' x 1' situated on the outer side of the lower part of the right chest.
The margins of the wound were charred and inverted (wound of entry).
(6) Gunshot lacerated wound 1 --X 1" on the outer side of the right abdomen near the iliac crest through which a portion of the greater omentum was coming out. The margins were charred (wound of entry).
(7) Five : gunshot lacerated wounds --X -- " on the back of the right chest (wounds of exit).
Head and neck cut away and absent. The neck had been cut away at the level of 6th cervical vertebra which was also cut completely.
The course of injuries Nos. 5 and 6 has been described by the doctor as follows :- Course of Injury No. 5; The pellets in one cluster after entering the abdomen through the wound No. 5 injured the ascending colon then through the liver, entered the chest fracturing the ribs on the back and went out through injury No. 7.
Course of Injury No. 6.-The bullet after entering the abdomen through injury No. 6 reptured the intestines along with the mesenteric vessels and entered the iliac bone on the opposite side fracturing it, broke into two pieces then lodged into it. The bullet in two pieces removed and sealed.
The following injuries were found on the dead body of Chakar :-
(1) Multiple incised wound at the lower part of the neck cutting away the neck and head completely which were absent (post-mortem injury).
(2) Gunshot lacerated wound -- " x -- ' on the front of the abdomen 2 --' below the umbilicus (exit wound of No. 4).
(3) Gunshot lacerated wound 1 --" x 1' on the front of the right abdomen at the right iliac fossa through which the intestines were coming out. There was no charring of the wound and it was the wound of entry and there was corresponding mark on the banyan.
(4) Gunshot lacerated wound 1 --x 1' on the outer side of the right chest on the lower part (wound of entry corresponding mark on banyan).
(5) Two gunshot wounds -- ' X -- ' each on the back (wound of exit).
(6) Incised wound 4 --x 1' on the front of the upper part of the left thigh.
(7) Gunshot lacerated wound 5 --X 2 -- ' on the outer side of the upper part of the left thigh.
Course of Injury No. 3 is given as follows :----- The bullet after entering the abdomen through injury No. 3 ruptured the ascending colon and strike against the vertebral column and fractured the 9th and 10th thorex vertebra, broke into two pieces, fracturing 9th and 10th ribs went out through injury No. 5.
Course of Injury No. 4 is given as follows :- The bullet after entering the abdomen through injury No. 4 injured the large intestines along with the mesenteric vessels fracturing the 11, 12th thorax vertebra broke into pieces, one piece went out through injury No. 2, and then strike against the left iliac bone fracturing through it teared the mussels and went out through injury No. 7.
The doctor found the following injuries on the dead body of Shamira :-
(1) Eight gunshot lacerated wounds on the right side of the abdomen. There were corresponding lacerated marks on the kurta and chadar and there was no charring of the wounds (wound of entry).
(2) Gunshot lecerated wound -- " x --on the back of the left wrist (wound of entry).
(3) Gunshot lacerated wound -- ' x 1/8' on the inner side of the palm of the left hand (wound of exit).
Course of Injury No. 1 is given before doctor as follows :---- The bullets through the injury No. 1 entered the abdomen, lacerating the ascending colon and large intestines at many places and mesentary with its vessels entered the left psoas mussels in the abdomen and got lodged five of them and three found from. The abdominal cavity.
Course of Injury No. 2 is given as follows :--- The bullet after striking through the injury No. 2 passed out under the skin throng injury No. 3.
9. Two hachets, P. 2 and P. 4, recovered at the instance of Satta and Allah Ditta respectively were found to be stained with human blood. Similarly the earth taken from the spot was also found to be stained with human blood. Empty cartridges found from the spot and the fire-arm recovered from the respondents were sent to the ballistic laboratory. Sh. Muhammad Din P: W. 2 the Fire-Arm Expert after examining the same found that 3 out of the 5 empty cartridges of .12 bore had been fired from gun, P. 1, belonging to Rajba ; the remaining two .12 bore empties were found to have been fired from pistol P. 3 recovered at the instance of Zahoor ; three '303 crime empties were found to have been fired from the rifle recovered at the instance of Muhammad respondent while the two 7 mm.
Crime empties were found to have been fired from the 7 mm-- rifle P. 6 recovered at the instance of Nasir respondent.
9-A. At the trial the prosecution relied on-
(i) the ocular testimony ;
(ii) recoveries of crime empties and fire-arms, coupled with the report of the fire-arms expert;
(iii) the evidence of motive ; .
(iv) the medical evidence ;'
(v) the register maintained by the Sahiwal Jail authority, containing entries regarding applications for interview with the prisoners.
The respondents denied their guilt and pleaded, innocence.
10. We have heard the learned counsel for the appellant (complainant) as well as the learned counsel for the accused respondents and the State counsel, at considerable length; and have gone through the judgments of the two Courts below and the entire evidence on the record.
It was submitted by the learned counsel for the appellant that the learned High Court Judges had erred in discarding the testi--mony of the eye-witnesses merely because they were related to the deceased. He submitted that the presence of Karam A.I P. W. 8 with the deceased at the time of occurrence is established by the fact that his name is entered in the register as one of the persons who had applied for an interview with Sardar at Sahiwal Jail along with Abdus Sattar, Chakkar and Shamira deceased. He submitted further that the learned High Court had wrongly disbelieved the recoveries effected by Faizul Hasan S. I.(P. W. 17), some of which were witnessed by Allah Yar P. W. 7, while the rest were witnessed by Farid P. W.
10. He contended that as Farid P. W. 10 was not related to the deceased there was no reason to disbelieve his testimony with regard to the recovery of the weapons from the accused-- respondents, especially the recovery of blood-stained hatchets from Sattar and Allah Ditta respondents, which connect them directly with-the offence committed by them. He submitted further that the post-mortem reports reveal that the fire-arm injuries as well as incised injuries were found on the bodies of Abdus Sattar and Chakkar deceased which support version given by the eye-witnesses. He submitted lastly that the motive also, tends to corroborate the ocular testimony.
11. We have considered all the above-noted contentions. Five witnesses are mentioned in the F. I. R.
As having witnessed the occurrence. Out of them two, namely, Data and Ahmad Yar have not been produced. It may be mentioned that Dara is brother-in-law (Hamzulf) of Shamir deceased while Ahmad Yar is the brother-in-law (Hamzulf) of Allah Yar P. W.
7. The remaining three eye-witnesses, namely, Allah Yar P. W. 7, Karam A.I P. W. 8 and Qutab P. W. 9, who were produced at the trial have supported the prosecution case. The question however is as to ho much reliance can be placed on them. Admittedly all three of them are closely related to each other as well as to the three deceased. Allah Yar P. W. 7 is the real brother of Abdus Sattar deceased. Karam A.I P. W. Is the maternal uncle---s son of Allah Yar P. W. And Abdus Sattar deceased. Qutab P. W. 9 is also paternal uncle's son of Allah Yar P. W. And his deceased brother Abdus Sattar. Admittedly the accused- respondents art also closely related to each other. Basara, and Sattar respondents are real brothers. Zahur, Allah Ditta, Muhammad Nasir and Hamand also real brothers inter se and are paternal uncles of Basara and Satta respondents. Rajba and Sarwar are sons of real paternal uncles of Basar respondent. Lalu (absconder) is a friend of Basara and Sattar respondents. It is admitted that there was hostility between the two families, which had arisen from the murder of Sardar, brother of Basara respondent, for which Allah Yar P. W. 7 and his brother Yaqub were tried and the latter was convicted, while Allah Yar P. W. 7 was acquitted.
12. In view of the close relationship of the eye-witnesses with the deceased and their hostility towards the respondents it was natural for the learned trial Court to look for independent corroboration. But it must be seen, first, whether the testimony of the eye-witnesses is, at all, worth of reliance. In this connection we notice that both the Courts below have held' that Allah Yar P. W. 7 and Qutab P. W. 9 were chance witnesses. It is by chance that Qutab P. W. Had asked Allah Yar to accompany him to village Shaikh Fazal on the same day as the three deceased and Karam All left for Sahiwal Jail to visit Yaqub. Moreover, it is the remarkable coincident that they reached the bridge of the distributory in the area of Chak No. 102/E. B, exactly at the same time as the bus in which the three deceased and Karam A.I were returning from Sahiwal. Had these two co incidents not occurred, Allah Yar and Qutab P. W. Would not have been able to accompany the deceased from the bridge to their Chak and be present to witness the occurrence. As such, if it be found that they were in fact present at the spot, they could certainly be called chance witnesses. But there are indications that they were not present at the spot at the time of occurrence reading of their statements indicates that the story about the visit of Allah Yar P. W. 7, Qutab P. W. 9 and Dara (not produced) to village Sheikh Fazal has been fabricated merely to make-out the reason for their being present with the three deceased at the place of occurrence.
13. It is stated by Allah Yar that he had gone with Qutab P. W. Because the latter had to purchase a buffalo from that village. It has, however, been admitted by him during the cross-examination that he had never helped Qutab in buying any cattle prior to the said incident. In fact he went so far as to say that "I did not do anything for him prior to the aforementioned incident". He stated that the buffalo had to be purchased from one Zahid Chishti. But had not mentioned his name in the F. I. R.
Nor was this person contacted by the Investigating Officer. In fact, Allah Yar P. W. Had not mentioned anything in the F. I. R. About their mission of, purchasing a buffalo from village Sheikh Fazal. Quta P. W. 9 is the maternal cousin of Allah Yar. But when questioned about it, he (Allah Yar P.
W.) stated that "Qutab P. W. Is not related to me. He is not a friend of mine. He is just an acquaintance". This brazen s denial of relationship is sufficient to demonstrate that he is quite capable of telling lies. It is, further, noteworthy that Qutab never purchased any buffalo at village Shaikh Fazal. The reason given is that when they met the person from whom the buffalo had to be purchased, he informed them that he had already sold it. It is evident from what has been stated above that the whole story about their having gone to village Sheikh Fazal is a fabrication and was concocted only to create a reason for being present at the bridge of the distributory in the area of Chak No. 1.02/E. B.
There is yet another reason for concluding that Allah Yar P. W. 7 was not present at the spot. Had he been present at the spot with the three deceased persons he would have been the first target of the accused-- respondents, because it was he who along with his brother Yaqub, was involved in the murder of Sardar brother of Sattar and Basara accused, which constituted the motive for the three murders in the present case. Allah Yar P.-W. Realised this and attempted to explain the reason for his having escaped injury at the hands of the accused by saying that he had hidden himself in a chari field situated at a distance of 30 karanms (150 feet)l from where they (i. e., the eye-witnesses and the deceased) had first seen the accused, and that the accused had not shot at him because they had not seen him. But it is noteworthy that he neither mentioned this fact (that he had hidden in char! Field) in the F. I. R. Not in his examination-- in-chief before the committing Magistrate. Similarly his companion, Qutab P. W. 9, bad not stated anything about Allah Yar having hidden himself in the chari field either in his statement under section 161, Cr. P. C. Before the police or in his statement before the committing Magistrate. This story was obviously evolved subsequently in order to explain as to how he had escaped being injured at the hands of the accused-respondents during the incident. There is, however, another reason for holding that Allah Yar P. W. Was not present at the spot: Because if he was present then it was not possible that none of the accused, who were nine in number, noticed him, specially when, according to the prosecution itself, there was sufficient light and Allah Yar had to run as much as 150 feet before reaching the chari field.
14. Qutab P. W. 9, who has supported the story about having gone to village Sheikh Fazal for purchasing a buffalo as well as Allah Yar P. W. Hiding himself in a chari field is also an untruthful witnesses. He too had not stated in his statement before the police or the committing Magistrate that Allah Yar had hidden himself in the chart field. Like Allah Yar P. W. He too has denied that there was any relationship between them. But he was confronted during his cross-examination with the statement made by him before the Police wherein he had stated that Allah Yar P. W. Was the son of his maternal uncle. Another indication of the fact that he is-a liar is his statement before the committing Magistrate, with which he was confronted during the cross-examination at the trial, that he had actually seen the bullets travelling from the barrels of the fire-arms and hitting the deceased. We are therefore inclined to hold that they were not at all present at the spot at the time of the occurrence and are false witnesses. This would also falsify the F. I. R. Which has bean lodged by Allah Yar posing as an eye-witness.
15. The third eye-witness Karim A.I P. W. 8, is also closely related to the deceased. He is the real maternal uncle's son of Allah Yar P. W. 7 and Abdus Sattar deceased. He is stated to have accompanied the three deceased to Sahiwal Jail to visit Yaqub who is undergoing his sentence in connection with the murder of Sardar. No documentary, proof of this visit was produced to support the oral statement of Karam A.I and Allah Yar etc. In this behalf, either before the police or the committing Magistrate. At the trial, however, a register maintained by the Sahiwal jail Authorities, containing entries regarding applications made by persons desirous of visiting the prisoners was produced. Reliance was placed on an entry dated 12th of August 1969 in this 'register showing that an application had been made to obtain permission for the three deceased and Karam A.I P. W. To visit Yaqub. In the first place, as observed already, this register was not even mentioned before the police or the commit in Magistrate. Secondly the register is not properly maintained as it is no even paged and in some portions of it the entries are numbered while in other portions they are not numbered. Thirdly it is not a register showing that the applicants had actually visited the prisoner to meet whom they had made the application. But the register only contains entries of applications made for interviews. It is admitted that a separate register is maintained wherein the names of persons who enter the jail are noted down. Moreover, a cursory look on the relevant entry in the said register shows that there had been an interpolation in the column showing whether the application for interview was accepted or not. Wherever the application for interview was allowed 'the word appearing in the relevant column is (accepted). But the entry against the relevant column against the application of Karam A.I etc. The word written is (not accepted). Some one has however tried to tamper with it and the wordhas been changed notin order to show that the application had been allowed. The learned counsel for the respondents admitted that such applications for interview are either made when the concerned person visit the jail or they are sent in advance. It appears that in the present case the application had been disallowed in advance and the deceased probably never went to the jail. Even if they had gone to the jail they were not allowed to meet the prisoner and Kara A.I P. W. 8 has told a lie when he says that he as well as the three deceased had gone inside the jail and visited Yaqab. This is also evident fro his cross- examination because he was not able to describe the building or the doors inside the main gate nor did he appear to be familiar with the procedure of entering the jail. We, therefore, disbelieve this witnesses as well.
16. We may also mention that the testimony of the eye-witnesses is also falsified by the medical evidence. They have given minute details as to which of the accusers shot at each of the three deceased and also named the weapons used by them. It has been stated by them that the attack was opened by Lalu (absconder) and Nasir respondent who fired at Chakkar deceased with a gun and a 7 mm. Rifle respectively. They had fired one shot each. But the description of the two wounds of entry, at Serial Nos. 3 and 4 in the post-mortem report of Chakkar deceased shows that they are absolutely identical to one another. Injury No. 3 is described as a Gunshot lacerated wound, 1 -- x 1' and injury No. 4 is also described as Gunshot lacerated wound 1 --x 1'. It is surprising how shots fired with a gun and 7 mm. Rifle happened to be identical.
17. Similarly the eye-witnesses have stated that Muhammad and Nasir accused shot with their rifles at Abdus Sattar. Wounds of entry caused by them are described at Serial Nos. 5 and 6 in the post- mortem report relating to Abdus Sattar. Their dimensions are identical but the doctor found that injury No. 5 had been caused by a shot-gun, in which the pellets had entered the abdomen "in one cluster" while injury No. 6, having exactly the same dimension has been described as that of a rifle.
Obviously this contradicts the eye-witnesses.
18. According to the eye-witness, Rajba and Zahoor fired one shot each on Shamira with a .12 bore gun and 12 bore pistol respectively. But from a cursory look at the description of the three injuries found on the body of Shamira as described in the post-mortem report relating to him, it is evident that all the three wounds were the result of single shot.
While describing the various injuries the doctor has described them as gun-shot wounds but while describing the course of projectiles he has mentioned the projectiles. In fact the doctor who performed the post-mortem examination does not appear to have made much distinction between a `bullet' and a `pellet ' and using the two words loosely, he has repeatedly inter-changed the two.
19. As far as the recoveries are concerned the evidence of the recovery of the empty cartridges from the place of occurrence have been disbelieve by both the Courts below. The evidence of the recovery of the gun, rifle and pistol therefore also became useless. The recovery memos of the two blood-stained hatchets recovered from Sattar and Allah Ditta respondents have been witnessed by Faizul Hassan A. S. I. (P. W. 17), Farid P. W. 10 and Nazir. Faizul Hassan has been disbelieved by both the Courts below while the High Court has not placed reliance on Farid P. W. The third person Nazir has not been produced. But even if these recoveries were to be believed there is no ocular evidence left which they could corroborate because we have already held that the eye-witnesses are false.
20. For the aforementioned reasons we feel that the High Court was justified in acquitting the respondents. The appeal is consequently dismissed as being without merit.
The respondents are set at liberty to be released forthwith if not required in any other case.