1994 P Cr (PLP)

MIAN ABDUL KHALIQ, J.

Abdul Rauf son of Abdul Hamid and Javid Afzal son of Muhammad Shafique appellants were tried by the learned Judge, Punjab Special Court (Suppression of Terrorist Activities), Bahawalpur Division, Bahawalpur, who vide his impugned judgment, dated 29-9-1993 convicted and sentenced them under section 302/34, P.P.C. to death as Tazir for committing Qatl-i-Amd of Sana Ullah deceased and also a fine of Rs.1,00,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of its payment, both were directed to suffer imprisonment for a period of 6 months each. To assail their conviction and sentence, they have come up in appeal.

2. The prosecution case in brief as unfolded in the F.I.R. Exh.P.C recorded on 12-1-1993 at 11-00 p.m. at Police Station City Chishtian on the complaint of P.W.7 Hakim Abdul Majid by P.W.14 Muhammad Ali Inspector/S.H.O. was to the effect that 10 minutes earlier the complainant alongwith P.W.8 Haji Muhammad Adib on a motorcycle were coming back to their house and wshen on the way they crossed the bridge Fordwah Canal, a Suzuki Car Anguri coloured bearing Registration No.205-800/Karachi with its lights on facing Sugar Mill was parked beside the road and in front of it appellants Abdul Rauf and Javid Afzal, residents of Sugar Mill Road, were quarrelling with an unknown person. Abdul Rauf appellant was armed with a Klashnikov and Javid Afzal appellant had a pistol. The unknown person was wearing light green coloured shirt and Tillaydar Chadar and was demanding money from Abdul Rauf and Javid Afzal appellants. In presence of the complainant and P.W.8 Haji Muhammad Adib, Javid Afzal appellant fired a shot with his pistol on the chest of that man and then fired many shots on him, who died at the spot. Thereafter both the appellants placed his dead body in the car and escaped towards old Chishtian. The complainant reached police station on a motorcycle and lodged the F.I.R.

3. P.W.14 Haji Muhammad Alt, Inspector/S.H.O. after drafting F.I.R. Exh.P.C. passed a wireless message, reached the place of occurrence and inspected the same and secured blood-stained earth vide memo. Exh.P.F., took into possession three empties of .30 bore revolver P.10/1-3 and five empties of Klashnikov P.11/1-5 from the place of occurrence, made into two separate sealed parcels and secured the same vide memo. Exh.P.G. He also prepared rough site plan Exh.P.N. and recorded the statements of P.Ws. Meanwhile Muhammad Shafique Constable P.W. (not produced) came alongwith the file of case F.I.R. No. 11/93 of connected murder case and he reached the locale of the connected murder case, where Hamid Hassan A.S.I. (P.W.12) and Muhammad Shaft H.C. (P.W.13) were present alongwith the appellants. He arrested them. Thereafter Hamid Hassan A.S.I. (P.W.12) produced before him Klashnikov P.15 which he earlier recovered from Abdul Rauf appellant, P.W.14 made the same into a sealed parcel and secured it vide memo. Exh.P.J. Hamid Hassan A.S.I. (P.W.12) also produced before him .30 bore pistol P.16 earlier secured from Javid Afzal appellant, made it into a sealed parcel and took into possession vide memo. Exh.P.K. The appellants could not produce the licence of Klashnikov P.15 and pistol P.M. He drafted complaints under section 13 of the West Pakistan Arms Ordinance (XX of 1965). The appellants had to the place from where the dead body of Sana Ullah deceased was recovered and the same was secured vide memo. Exh.P.L. He also secured blood-stained earth from underneath the dead body of Sana Ullah vide memo. Exh.P.M. He also secured blood-stained clothes from the person of Javid Afzal appellant viz. Shalwar P.13 and shirt P.14, and made them into a sealed parcel vide memo. Exh.P.I. He prepared inquest report of Sana Ullah deceased Exh.P.D./3 and despatched the dead body to the mortuary. Thereafter he again went to the place of occurrence of connected murder case and secured blood-stained piece of cover P.12 of the seat of Suzuki car vide memo. Exh.P.H. He recorded the statements of the P.Ws. and after completion of the formalities, challaned the appellants.

4. The prosecution examined 14 P.Ws. in all to substantiate its case.

5. Hakim Abdul Majid (P-W.7) on whose statement F.I.R. Exh.P.C. was recorded, has disowned the same and he was declared hostile. P.W.8 Haji Muhammad Adib stated that on the relevant time he alongwith P.W.7 Hakim Abdul Majid on a motorcycle were coming from Chishtian Sugar Mill at about 9-45 p.m. towards their house. When they crossed the bridge of Fordwah Canal, they saw Suzuki car there with its lights on. They witnessed three persons there who were standing in front of the Suzuki. Two of them namely Abdul Rauf and Javid Afzal were known to him. Javid Afzal appellant was armed with pistol while Abdul Rauf appellant had a Klashnikov. Thereafter they heard fire shots and companion of both the appellants succumbed to his injuries at the spot. The appellants took the dead body of their companion in the abovesaid Suzuki car towards the canal. P.W.8 further states that the deceased was wearing Chadar and Kamiz at the time of occurrence.

6. The medical evidence on record was furnished by P.W.9 Dr. Muhammad Afzal Saqib, who on 13-1-1993 conducted autopsy on the dead body of the deceased Sana Ullah and found the following injuries on his person:-- (i)???????? A lacerated wound over left temple. Wound oval margins inverted. Skull bone fractured, membrance brain matter punctured. Burning tattooing present (entry wound) size 3 c.m. x 3-1/2 c.m. x deep going. (ii)??????? A lacerated rounded wound over right temple with everted margins. Size 2 c.m. x 2 c.m. x deep going. Skull bone fractured. Membrances and brain matter protruding out through' the wound (Exit wound) continuous with injury No.l. (iii)?????? A lacerated rounded wound with inverted margins over left nipple size 1/2 c.m. x 1/2 c.m. x deep going. Tattooing present over chest around the nipple and also over Kamiz, Sweater and Bunyan. It penetrated left chest wall, pleura, left lung, 7th rib was fractured over posterior chest wall and bullet was recovered from posterior chest wall. (iv)?????? A lacerated rounded wound 1/2 c.m. x 1/2 c.m. x deep going over outer aspect of left upper arm (entry wound) tattooing present. (v)??????? A lacerated wound 1 c.m. x 1-1/2 c.m. with everted margins over back of left axilla (exit). It is continuous with injury No.4. He opined that the cause of death was cardiorespiratory failure due to severe haemorrhage and shock caused by injuries Nos.l and 3 which were sufficient in the ordinary course of nature to cause death. Injuries Nos.2 and 5 were exit wounds. All the injuries were ante-mortem in nature and were caused by fire?arms. Probable time between injuries and death was 2 to 8 minutes and between death and post-mortem was within 12 hours. 7????????? Recovery aspect of the case has been furnished on record by P.W.11 Basharat Ali, Constable and P.W.14 Muhammad Ali Inspector/S.H.O., who had witnessed the recovery of blood-stained earth vide memo. Exh.P.F., 3 empties of .12 bore pistol P.10/1-3 and 5 empties of Klashnikov P.11/1-5 and secured the same vide memo. Exh.P.G., a piece of blood-stained seat cover P.12 secured vide memo. Exh.P.H. The appellants were arrested at the spot on 13-1-1993 and from near the spot P.W.14 Muhammad Ali S.H.O. secured blood-stained Shalwar P.13 and Shirt P.14 of Javid Afzal appellant vide memo. Exh.P.I. and .30 bore pistol P.16 vide memo. Exh.P.K They also witnessed the recovery of Klashnikov P.15 which was secured vide memo. Exh.P.J. They also witnessed the recovery of blood-stained earth from near the dead body of Sana Ullah deceased as well as the recovery of dead body at the instance of the appellants one by one vide memo. Exh.P.L. reports of the Chemical Examiner Exhs.P.P., P.Q./1, P.R. and P.S. and four reports of Serologist Exhs.P.P./1, P.Q/1, P.R./1 and P.S./1 and attested copy of the report of Forensic Science Laboratory Exh.P.T. are positive.

8. The appellants when examined under section 3.42, Cr.P.C. denied the prosecution evidence against them as well as the recovery of crime weapons. Both the appellants in answer to the question "Have you anything else to say?", replied:-- "They are innocent. They were not arrested from the place of occurrence. However, they both were arrested at about 4/5 a.m. between the night 12/13-1-1993 from the house of Muhammad Ali, Reader to E.A.C., Chishtian in his presence as well as in the presence of Maqbool Ahmad Langah, EA.C., Chishtian and other neighbours of Muhammad Ali, Reader viz. Muhammad Amin, Muhammad Saleem, Muhammad Latif etc. All the recoveries were planted against them in order to strengthen the case of prosecution."

9. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellants vide the impugned judgment.

10. We have heard the learned counsel for the parties, who led us through the evidence on record. The learned counsel for the appellants has criticised each and every part of the prosecution evidence.

11. P.W.7 Hakim Abdul Majid lodged F.I.R. Exh.P.C. at the police station and narrated that he had witnessed Abdul Rauf appellant armed with Klashnikov and Javid Afzal appellant armed with .30 bore pistol quarrelling with an unknown person and within his view Javid Afzal appellant fired with his pistol at the chest of the said person and thereafter fired at him continuously, who died at the spot. Then the appellants lifted the dead body, placed the same in the Suzuki car and escaped towards Old Chishtian. P.W.7 Hakim Abdul Majid when appeared before the trial court stated that he alongwith P.W.8 Haji Muhammad Adib was attracted to the spot after hearing the fire shots near Matiana Hospital and had witnessed Ghulam Ahmad. Constable in injured condition and he alongwith P.W.8 took him to the hospital, where Ghulam Ahmad died and he alongwith P.W.8 reached the police station, where a stranger informed them that two robbers (appellants) murdered their companion Sana Ullah. However, he reported the matter to the S.H.O., but the same was not read over to him. He was declared hostile. A He was confronted with his statement Exh.P.C. (F.I.R.), who denied the same. He also denied the suggestion that he had deposed falsely in the Court at the instance of the relatives of the accused. During cross-examination he stated that Ghulam Ahmad deceased constable of the connected murder case was grandson of his maternal-uncle and he had spoken truth in view of the sanctity of the oath administered to him by the Court. P.W.8 Haji Muhammad Adib stated that he alongwith P.W.7 Hakim Abdul Majid on a motorcycle crossed Fordwah Canal and found the appellants standing in front of a Suzuki car Javid Afzal appellant was armed with a pistol and Abdul Rauf appellant was armed with Klashnikov. They heard the fire shots and companion of both the appellants died as a result thereof at the spot. He had not specifically stated that who had fired the shots at the deceased.

12. P.W.14 Haji Muhammad Ali, S.H.O. after recording F.I.R. Exh.P.C. had given a wireless message to Hamid Hassan, A.S.I. (P.W.12) complainant of the connected murder case, who was on patrol duty and allegedly chased and arrested the appellants. He secured pistol P.16 and Klashnikov P.15 from Javid Afzal and Abdul Rauf appellants respectively vide memos. Exhs.P.K and P.J. attested by P.W.13 Muhammad Shafi, H.C. P.W.14 Muhammad Ali S.H.O. stated that after recording F.I.R. Exh.P.C. he had taken along P.Ws.7 and 8 with him at the spot, whereas they stated otherwise. P.W.8 Haji Muhammad Adib stated during cross-examination that his statement was not recorded on the day of occurrence, but on the third day he was called by P.W.14 Haji , Muhammad Ali, S.H.O. who recorded his statement under section 161, Cr.P.C. at the place of occurrence and meanwhile he neither visited the police station nor the place of occurrence and even the police had not contacted him. It is surprising that P.W.14 Haji Muhammad Ali, S.H.O. neither recorded' statement of P.W.8 Haji Muhammad Adib after registration of the case nor thereafter till the expiry of three days.

13. P.W.14 Haji Muhammad Ali prepared the memo. Exh.P.L. of recovery of the dead body of deceased Sana Ullah attested by P.W.12 Hamid !C Hassan, A.S.I. and P.W.13 Muhammad Shali H.C. None of the residents of the I~ locality joined the recovery proceedings nor was summoned to witness the recoveries. No doubt it was about mid-night time when the recovery was effected, although near the place of recovery there was a Sugar Mill and shops and houses nearby and even in that case none was attracted to the spot nor summoned to witness the recoveries. The doctor after post-mortem examination had delivered a sealed phial to Munawar Hussain, Constable b (P.W.10) who produced the same before P.W.14 Muhammad Ali, S.H.O., but he never cared to send the same to the Forensic Science Laboratory, and in the peculiar circumstances of the case the positive report of Forensic Science Laboratory Exh.P.T. has no value. The appellants had raised the plea that they were innocent and the deceased was their friend and due to that they had been falsely involved, as Sana Ullah deceased was killed in police encounter, and they had been arrested from the house of the Reader of the Extra Assistant Commissioner, but they had not led the defence.

14. Pursuant to the above discussion, we are of the view that the prosecution has failed to establish its case beyond doubt against the appellants E and giving them benefit of doubt we acquit them of the charge. They are in jail, they shall be released forthwith if not required in any other case. N.H.Q./A-647/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.