P L D 2UU2 Lahore 110 (PLP)

(16) A lacerated wound 5 c.m. x 3 c.m. musscle deep on the mid and inner of right forearm. Glancing injury. (17) Lacerated wound 10 c.m. x 3‑1/2 c.m. on the inner and front of forearm, 1 c.m. outer to injury No.16. Muscle deep. It was also a glancing wound. (18) A lacerated wound 5 c.m. x 3 c.m. on the back and base of right index and middle fingers of the right hand. The underneath were fractured and out from the front of hand. (19) Punctured wound 2 x 1 c.m. x going deep in front of upper part of left arm, edges were everted. It was an exit wound. (20) Punctured wound 2 x 1/2 c.m. x going deep on the outer and upper part of left arm, edges were evened. It was an exit wound. (21) A punctured wound 1/2 x 1 c.m. x going deep on the outer and upper part of left chest 7 c.m.outer to the left nipple edges everted. It was an exit wound. (22) Punctured wound 2/c.m. x 1‑3/4 c.m. x going deep in front and middle of left arm, edges were everted, wound of exit. (23) Punctured wound 1 x 1/2 c.m. x going deep in front of mid of left abdomen, 10 c.m. outer to the umbilicus, edges were averted and it was exit wound. (24) A hraded area 4 c.m. x 3 c.m. on the top of right shoulder. (25) A lacerated wound 2 x 1 c.m. x bone exposed on the outer side of left wrist joint, bones (Radious and ulna underneath were fractured). (26) Punctured wound 1 x 1 c. m. going deep on the inner and lower part of right arm, edges everted, exit wound.

13. Muhammad Rashid, P.W.5, Aziz Hussain, P.W.10 and Sh. Pervaiz Ali, P.W.11, appeared as eye‑witnesses. Zamir‑ul‑Hassan, P.W.3, testified that he had identified the dead bodies. Agha Zulfiqar Ahmad, Inspector/P.W.7 testified that site plan Exh.P.F. was drafted by Syed Akhtar Hussain. He also stated that he submitted incomplete challan against the accused. Shahid Nazir appeared as P. W.13 and stated about the registration of F.I.R. and about the initial investigation carried by him. Rest were the formal witnesses, except P.W.4, who did not support the prosecution version.

14. After submission of reports of Forensic Science Experts Exh.P.P., Chemical Examiner Exh.P.N. and Serologist Exh.P.O., the prosecution closed its case:

15. The appellant Anees‑ur‑Rehman in his statement recorded under section 342, Cr.P.C. stated that "I have falsely been implicated in this case due to sectarian differences. P.Ws. are closely related to deceased persons, and they have deposed against me on that account. My uncle was murdered by the deceased persons of this case alongwith the other and a case was registered against them. They were declared innocent. I and my other family members were satisfied with the police report. Due to that occurrence the complainant party made this suspicion upon me otherwise I have not committed this offence".

16. Muhammad Farooq, appellant, stated as follows:‑‑ I have falsely been implicated in this case due to sectarian differences. The P.Ws. are closely related to the deceased persons and they have deposed against me on that account. Both the appellants stated that they would not lead any defence evidence and they would not make a statement under section 340(2), Cr.P.C.

17. D.W.2, D.W.3 and D.W.4 stated about the innocence of Muhammad Ashraf acquitted co‑accused, while D. W.1 placed on record the certified copy of Repat No.31 dated 21‑12‑1996 as Exh.D.E. and Rapat No.42 dated 22‑12‑1996 as Exh.D.F. The above Rapats were mentioned in Register Roznamcha Waqiati of Police Station City Chichawatni.

18. We have heard the arguments of the learned counsel for the appellants as well as the learned counsel for the State. We have also examined the entire record, considered all the aspects of the case and gone through the impugned judgment.

19. The main thrust of the arguments advanced by the learned counsel for the appellants is based on the points that the P. Ws. produced during the trial, were not trustworthy as they had not seen the occurrence and in fact their attendance was procured after the occurrence by the police; that the F.I.R. was lodged after holding preliminary investigation, therefore, it had lost its sanctity and that the investigation was conducted in a dishonest manner and the prosecution had failed to prove its case.

20. On the other hand, the learned counsel for the State and the learned A.A.‑G. have contended that it was a daylight occurrence; that there was no question of non‑identification; that all the P.Ws. had no personal grudge to falsely implicate the appellants and that the minor discrepancies should be ignored. (1) Ocular. (2) Motive. (3) F.I.R. (4) Medical. (5) Recovery and Investigation. (i) OCULAR

22. In total five P. Ws. namely Shabbir Hussain, Muhammad Rasheed, Aziz Hussain, Sh. Pervaiz Ali and Hassan Raza son of Shabbir Hussain were cited as eye‑witnesses. Out of these witnesses," Hassan Raza was not produced during the trial and was given up as unnecessary. The remaining four eye‑witnesses can safely be divided into two sets. One set comprises of Shabbir Hussain P.W.4 and Muhammad Rashid P.W.5, who were not v mentioned as eye‑witnesses in the F.I.R. and they were named as eye witnesses in the supplementary statement made by the complainant recorded after the registration of the F.I.R. The second set comprises of Aziz Hussain P.W.10, who is complainant of the case, father of Abid Askari deceased and brother of Barkat Ali deceased, and Sh. Pervaiz Ali P.W.11, who is cousin (Khalazad) of the complainant.

23. The occurrence took place at 10‑00 a.m. near Chowk Dhobi Gate and all the witnesses were allegedly present there by chance.

24. Firstly, we will evaluate the evidence of the P. Ws. Nos.4 and

5. Shabbir Hussain P.W.4 was not named in the F.I.R., who stated that on the day of occurrence, he was in the company of Muhammad Rashid P.W.5 and when they reached near the place of occurrence, the occurrence was already over and he had not witnessed any of the assailants. This P.W. was declared hostile and was cross‑examined by the prosecution. P.W.5 Muhammad Rashid has supported the version of the prosecution, which developed after the recording of the supplementary statement. This witness was a serving Patwari on the day of occurrence, which was not a holiday being Wednesday. He has not explained satisfactorily that what was he doing at the place of occurrence on a working day. His name is also not given as witness in the F.I.R, Exh.P.G. According to him, he was in the company of P.W.4 Shabbir Hussain when he reached the place of occurrence and witnessed the same. On the contrary P.W.4 has categorically stated that he reached the place of occurrence after it was over and he has not seen any assailant. His statement is also in conflict with the version given in the F.I.R. According to the F.I.R. only the appellants had fired at the deceased and third accused named in the F I.R. Nazir Ahmed Machi did not fire at the deceased and was present on a motorcycle on which the assailants left the scene of occurrence. This witness has insisted that Nazir Ahmad had also fired at the deceased along with three others who were named subsequently as accused in the supplementary statement of the complainant who has not only doubled the number of the accused who were named in the F.I.R. but also stated that the accused/assailants left on two motorcycles although according to the F.I.R., the assailants who were only three in number left on one motorcycle. His statement is also belied by the documentary evidence as according to him, Abid Askari deceased son of the complainant was taken to the hospital by the complainant himself, while the perusal of the medico‑legal report of Abid Askari Exh.P.B. makes it absolutely clear that Abid Askari was taken to the hospital by Muhammad Yasin, Constable, who appeared as P.W.1. Exh.P.B, also shows that the injured was brought to the hospital by the police and there is no mention that any relative or friend was with the injured Abid Askari at the time when he was taken to the hospital. It appears that this p witness instead of speaking truth has tried to improve the version in accordance with stance taken by the complainant in his supplementary statement.

25. The Doctor who conducted the medical examination of Abid Askari, appeared as P.W.2 and verified the contents of Exh.P.B. His testimony was not challenged at all. According to P.W.5 the police reached the place of occurrence at about 11‑30 a. m. but P. W.1 Muhammad Yasin has stated that he had left the police station at about 10‑30 a.m. while Exh.P.B. shows that Abid Askari was brought to the hospital in injured condition by Muhammad Yasin P.W.1, at 10‑25 a.m. on the day of occurrence. Prima facie, the statement of P.W.5 seems to be incorrect on this Score as well. To top it all he has stated in his cross‑examination that he did not remember the exact date when the S.H.O. recorded his statement.

26. Admittedly, the deceased and the P.Ws. belonged to Fiqa Jaffaria, while the appellants claimed to, be members of Sipa‑e‑Sahaba. In this back ground, the evidence of P.W.5 has to be appreciated with due care and caution as he has admitted in the cross‑examination that in 1986, he was a student and the President of Imamia Students Organisation of Commercial College, Chichawatni, which was a branch of Fiqa Jaffaria Organisation. He has also admitted that he was nominated twice as General Secretary of Fiqa Jaffaria Organisation and was Shia by sect and a member of Fiqa Jaffaria. In this background, he appears to be a highly motivated witness. His statement was also not believed by the trial Court. First time his name was mentioned as P.W. in the supplementary statement of the complainant, which was recorded prior to the recording of the statements of the other P.Ws. Supplementary statement cannot be equated with the F.I.R., it cannot bed, considered or read as part of the F.I.R., as F.I.R. and the supplementary statement are two different things. F.I.R. is a document which is entered into 6 a book maintained at the police station and thumb‑marked or signed by the firs: informant while the supplementary statement is recorded under section 161, Cr.P.C. and is not signed or thumb‑marked. We are fortified in holding this view by placing reliance on the case of Falak Sher alias Sheru v. The State 1995 SCMR 1350. This witness is also unaware of the steps taken by the Investigating Officer at the spot. It appears that he was subsequently imported as witness because of his allegiance and his version is not trustworthy.

27. Now we attend to the ocular account furnished by Aziz Hussain, complainant P.W.10 and Sh. Pervaiz Ali P.W.11. Both these witnesses are related to the deceased. Abid Askari deceased was son of P.W.10 while Barkat Ali deceased was brother of the complainant. Sh. Pervaiz Ali is cousin (Khalazad) of P.W.10. The most important and vital question is whether they saw the occurrence as they statedly happened to be present at the place of occurrence by chance. According to the F.I.R., Abid Askari, who was seriously injured was taken by P.W.10 to the T.H.Q.. Hospital, Chichawatni and as the condition of Abid Askari was very serious, the Doctor referred him to Nishtar Hospital, Multan, and it was after making, arrangements of transfer of Abid Askari to Nishtar Hospital, the complainant went to the police station and reported the incident to the police. He has also stated in the F.I.R. that at the time of occurrence, he was in the company of Sh. Pervaiz Ali P.W.11. He has stated in his cross‑examination that the Medical Officer did not examine Abid Askari due to his serious condition and no medical report of Abid Askari was given to him. The Doctor who attended Abid Askari appeared as P.W.2 and stated on Oath that he medically examined Abid Askari and found eight injuries on his person including the entry and exit wounds. He also stated that Exh.P.B. was the correct carbon copy of his medical examination report and bore his signature. He has also admitted that the particulars of the injured recorded in the Exh.P.B. was narrated to him by the injured himself who was in senses at that time. He has also stated that the injured was brought to Hospital by Muhammad Yasin, Constable, who appeared as P.W.1. Subsequently the injured was handed over to him to take him to Nishtar Hospital. According to him all the injuries were fresh and caused within one hour. The perusal of Exh.P.B. shows that no relative was present when Abid Askari was taken to the Hospital. It is manifest from Exh.P.B. that it was Muhammad Yasin, Constable, who had taken Abid Askari to the hospital who reached there at about 10‑25 a.m. The medico‑legal report was also handed over to Muhammad Yasin, Constable which also contains the signatures of Muhammad Yasin, Constable P.W.1. Even otherwise it was not a normal conduct of a father to leave his dying son in the custody of others alone and leave for police station to report the matter. So this story of taking Abid Askari to the hospital is knocked out by very strong independent evidence provided by P.W.1 and P.W.2 as well as the documentary evidence i.e. Exh.P.B. The complainant also made major improvements in his supplementary statement vis‑a‑vis the assailants, the role of assailants and the manner in which the assailants left the place of occurrence. Only three D persons were named as accused including Nazir Ahmad Machi whose role as mentioned in the F.I.R. was that he was standing at the place of occurrence and the assailants escaped from the place of occurrence on his motorcycle. But in his supplementary statement and in his statement during the trial he included the names of Muhammad Ashraf and Muhammad Abdullah Sajid and Ishtiaq Ahmad as assailants as well and he also stated that all of them including Nazir Ahmad Machi who according to F.I.R. was empty‑handed fired at the deceased. He also improved his statement about the number of motorcycles, that the assailants left on two motorcycles, whereas one motorcycle was mentioned in the F.I.R.

28. Admittedly, the place of occurrence is an open place with tea‑stalls and shops but none from the vicinity was produced or cited as P.W. in the instant case. According to the F.I.R., Sh. Pervaiz Ali P.W.11 was accompanying the complainant prior to the occurrence. This P.W. has also tried to support the version of P.W.10. P.W.11 has also admitted that' supplementary statement of Sh. Aziz Hussain was written at the spot and his statement was written after recording of the supplementary statement of P.W.10. His statement is in conflict with the version given in the F.I.R. and also in conflict with the statement of P.W.2 the Doctor, who examined Abid Askari. Muhammad Yasin P. W.1, according to the, documentary, proof Exh.P.B., had taken Abid Askari to hospital.

29. We have noticed that in inquest report Exh.P.D. relating to Sh. Barkat Ali deceased, the parentage of Sh. Barkat Ali deceased has been wrongly recorded as the entry in Column No‑5 of the inquest report shows that Sh. Barkat Ali deceased was son of Lal Din which is factually incorrect because Sh. Barkat Ali was brother of the complainant who was son of Sh.Taj Din and not Lai Din. It does not appeal to reason that if P.W:10 and P.W.11 were present at the place of occurrence when the police reached the spot then the parentage of Sh. Barkat Ali deceased would be wrongly recorded: In the abovementioned report, the names of P.Ws.10 and 11 are not mentioned. The post‑mortem of Sh. Barkat Ali deceased was conducted on the same day at about 2‑00 p.m. According to the statement of Dr. Muhammad Akram Chaudhry who appeared as P.W.6, Exh.P.C. was a correct carbon copy of the post‑mortem report and in this report the father's name of Sh.Barkat Ali has been mentioned as Sh. Lal Din and not as Sh. Taj Din. According to Exh.P.C. dead body of Sh. Barkat Ali was also brought by Muhammad Yasin, Constable, who appeared as P. W.1, and was identified by Sh. Zamir‑ul‑Hassan and Syed Makhdoom Hussain. Zamir‑ul‑Hussain appeared as P.W.3 and stated about the identification of the dead body. The dead body of the deceased Sh.Barkat Ali was handed over to Sh. Pervaiz Ali P.W.11 vide memo. Exh.P.L. In this memo. the name of the complainant is mentioned as Pervaiz Ali and not Aziz Hussain. It is also noteworthy that in those memos., which were prepared by P.W.13 immediately after reaching the spot, the names of the accused have not been mentioned. The rough site plan Exh.P.M. prepared by P.W.13 after reaching the spot does not mention the name of any witness or the accused. In a case titled Mansab Khan v. The State 1974 PCr.LJ 416 (D.B.) this Court did not believe the ocular testimony as the first informant had changed his version and the names of the eye witnesses were not mentioned in the inquest report. It was observed in this case that in the circumstances it appears that the inquest report had been drawn earlier than the F.I.R.

30. There is also a very important factor in this case which cannot be overlooked that out of six accused except Ishtiaq alias A.S.‑I. who absconded, five were tried by the trial Court and out of five Muhammad Ashraf, Nazir Ahmad and Muhammad Abdullah Sajjid were acquitted by the trial Court. Nazir Ahmad was also named as accused in the F.I.R. P.W.10 and P.W.11 had assigned similar role to the acquitted accused, as according to them all the accused had fired at the deceased. No appeal has been filed against the acquitted accused either by the State or by the complainant. The P.Ws. have been disbelieved qua the acquitted accused and there should be F some strong independent corroborative evidence available against the appellants to base their conviction on the basis of the same evidence which was disbelieved qua acquitted accused. We are fortified in our views by placing reliance on the cases of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 Supreme, Court 11 and Sattaro v. The State PLD 1988 Karachi 350. (ii) Motive,

31. The complainant tried to set up a private motive in the F.I.R. Exh.P.G., wherein it was stated that in January, 1994 one Pitji Abdul Aleem was murdered in Madrisa Tajweed ul Qur'an and the deceased in the present case were named as accused alongwith others in the said F.I.R. However, both the deceased were declared innocent by the police and it was also stated that Anees‑ur‑Rehman appellant was real nephew of said Pirji Abdul Aleen deceased. It was, also stated that the other accused were friends of Anees‑ur Rehman appellant and members of Sipa‑e‑Sahaba. When the first informant appeared as P.W.10 before the trial Court, he did not utter a word about the motive in his examination‑in‑chief and it was in cross‑examination that it was suggested to him. that the accused were falsely implicated in the case due to sectarian differences. P.W.11 while making his statement before the trial Court, stated about the motive as well and according to him, the accused who were residents of City Chichawatni were members of Sipa‑e‑Sahaba while the deceased were the followers of Shia Sect and they were done to death due to sectarian differences. He further added in his examination‑in‑chief that the other motive of the occurrence was that on 17‑1‑1995 Qari Abdul Aleern uncle of Anees‑ur‑Rehman was murdered by two unknown persons and Qari Abdul Waheed the other uncle of Anees‑ur‑Rehman appellant got a murder case registered against Barkat Ali and Abid Askari deceased alongwith other accused. In cross‑examination it was admitted by this P.W. that none of the accused persons including appellants was complainant of the murder case of Qari Abdul Aleem. The appellants in their statements under section 342, Cr.P.C. stated that they were falsely implicated in this case due to sectarian differences.

32. It has been noticed by us that although it was tried in the F.I.R. to set up‑ a private motive yet the same could not be proved during the trial. No independent witness was produced in support of the motive. In these C circumstances, motive cannot be used as a corroborative piece of evidence as held by the Supreme Court of Pakistan in the cases of Rasool Bux and another v. The State 1980 SCMR 225 and Ata Muhammad and another v. The State 1995 SCMR

599. The motive even otherwise is a double‑edged sword and in the instant case, it has been proved that the appellants, deceased and the eye‑witnesses belonged to different sects. We cannot overlook the sectarian intolerance, which is, snore unfortunately, prevalent in these days in our country. (iii) FIRST INFORMATION REPORT

33. A perusal of the F.I.R. shows that the matter was reported to the police at 10‑45 a.m. at the police station by the first informant P.W.10, while the occurrence had taken place at about i0‑00 a.m. The F.I.R. was recorded by P.W.13, who has admitted to have received information about the incident prior to the report made by the P.W.10. P.W.1 Muhammad Yasin has also stated that he reached the place of occurrence alongwith P.W.13 at about 10‑30 a.m. The medico‑legal report Exh.P.B. also shows that Abid Askari was removed to hospital by Muhammad Yasin P.W.1 at 10‑25 a.m. and at that time none of the P.Ws. had accompanied him. The names of the accused are not mentioned in all the memos. prepared soon after the occurrence by P.W.13/Investigating Officer. The presence of the witnesses is not mentioned in the inquest report Exh.P.D. and the parentage of Sh.Barkat Ali deceased has also been wrongly mentioned as Lal Din. The complainant has also disowned the version of F.I.R. and has trade major and H vital improvements in the F.I.R. Resultantly, the F.I.R. has lost its sanctity and it appears in the circumstances which have been discussed above that the F.I.R. was recorded subsequently after the investigation had .already been started. (iv) MEDICAL EVIDENCE

34. The medical evidence in this case has been supplied by P.W.2, who examined Abid Askari deceased and by P.W.6 Dr. Muhammad Akram Chaudhry, who conducted the post‑mortem on the dead body of Sh. Barkat Ali. The medical evidence only supports the fact that the deceased died due to fire‑arm injuries and it does not identify the assailants. Abid Askari died while admitted in Nishtar Hospital, Multan, on 21‑12‑1996 and no post mortem was conducted on his dead body. So, the medical evidence does not advance the case of the prosecution qua appellants. (v) RECOVERIES AND INVESTIGATION RECOVERIES 35'. No incriminating recoveries were effected from the appellants. Neither the motor‑cycle nor the fire‑arms used by the accused were ever is recovered. Recovery of empties from the place of occurrence and the recovery of motor‑cycle, which. was being driven by Abid Askari deceased on which Sh. Barkat Ali deceased was sitting can hardly be used as incriminating material against the appellants as these recoveries only show the manner in which the occurrence took place.

36. We have found that the investigation in this case was conducted in a very casual and incompetent manner rather it can safely be termed as K dishonest investigation. Not a single P.W. from the vicinity was produced. Deliberate lies were made regarding the first information of the occurrence. The name of the father of Sh. Barkat Ali deceased was mentioned as Lal Din instead of Sh. Taj Din. Similarly the perusal of the memo. Exh.P.L., whereby Sh. Pervaiz Al: P.W.11 received dead body of Sh. Barkat Ali deceased, shows that initially Sh. Pervaiz Ali was being touted as complainant. The names of the accused were not mentioned in the memos prepared soon after the occurrence. So much so that the names of the accused or the P. Ws. are not mentioned in the site plan Exh.P. N. prepared by the Investigating Officer/P.W.13. We have also noticed with concern that in the above‑mentioned site plan the presence of Abid Askari deceased has not been mentioned. The other unique feature relating to the investigation of this case is that, throughout the trial it was not disclosed as to when the appellants were arrested in this case.

37. We are conscious of the fact that sectarian intolerance is rising and this tendency must be curbed. We are also conscious of the fact that two innocent persons were brutally murdered but it does not mean that we should overlook the long‑standing principles of safe administration of justice or to brutalise justice.

38. In a nutshell, the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants, therefore, giving the benefit of doubt to the appellants, we allow this appeal and acquit them of the charge. Their conviction and sentence is hereby set aside. The appellants would be released from Jail forthwith, if not required/detained in any other case. N.H.Q./A‑350/L Appeal allowed.