1989 P Cr (PLP)

SARDAR MUHAMMAD DOGAR, J.‑‑ Iftikhar Ahmad, aged 25/26 years, Saee Muhammad son of Abdullah, aged 50/52 years, Saee Muhammad son of Ali Muhammad aged 50/51 years, Soeni, aged 30/32 years, Ghulam Rasul aged 34/35 years, Pervaiz Ahmad aged 21/22 years and Mukhtar, aged 22/23 years, were tried by Additional Sessions Judge, Gujrat, alongwith Muhammad Sadiq under sections 302/307/148/149 and 109, P.P.C., for having murdered Ghulam Abbas and for having launched murderous assault on Fateh Muhammad (P.W.11), at 7‑45 a.m. on 28‑2‑1983, in the compound of Railway Station Chailianwala, at a distance of seven miles from Police Station Mandi Bahauddin, District Gujrat. The learned trial Judge convicted all of them except Muhammad Sadiq under sections 148/307/149 and 302/149, P.P.C. and awarded sentences as follows, vide judgment, dated 27‑7‑1985:‑ (1) under section 148/149, P.P.C. Three years' R.I. to each. (2) under section 307/149, P.P.C. Imprisonment for life to each. (3) under section 302/149, P.P.C. Death to Iftikhar Ahmad and Saee son of Abdullah. The rest to undergo imprisonment for life. All to pay a fine of Rs.15,000 each, in default to suffer R.I. for six month., each. Half of the fine, on realization has been directed to be paid in equal share to the heirs of the deceased and Fateh Muhammad injured P.W. Muhammad Sadiq was acquitted vide the same judgment. One Saee son of Khan Muhammad was also named as an accused in the F.I.R.; but he had died before the trial.

2. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of death sentence awarded to Iftikhar Ahmad and Saee son of Abdullah. The complainant has filed revision petition praying for enhancement of the sentences of the accused who have been sentenced to imprisonment for life under section 302/149, P.P.C., to death. As all the matters arise from the same judgment, they are being disposed of by one judgment.

3. F.I.R. (Exh.P.A /1) was registered at Police Station Mandi Bahauddin at 10 a.m. on 28‑2‑1983, bye Sabir Hussain, M.H.C. (P.W.6), on receipt of statement (Exh.P.A.) of Muhammad Anar (P.W.1), recorded by Amjad Karim S.I. (P.W.16) at 9‑10 a.m. same day, at bridge Qadirabad, near R.D. No.8. According to the. F.I.R., the complainant accompanied by his deceased brother Ghulam Abbas, P.Ws. Muhammad Arshad, Zafar Hayat, Nazir and Mehdi, had gone to Railway Station Chailianwala, on a tonga, to board train for Mandi Bahauddin, where they had to file bail bonds of the accused named in a case registered at Police Station Pahrianwala under section 307/325/326/148/149, P.P.C. The train, which they had to board, came from side of Lalamusa at 7‑45 a.m. They went to the platform and were going down the platform to board the train standing on the other railway line, when suddenly Saee son of Ali Muhammad, Socni, Saee son of Khan Muhammad (since dead), Iftikhar Ahmad, Saee son of Abdullah and Mukhtar Ahmad armed with guns, Ghulam Rasul and Pervaiz armed with rifles, came from behind the railway engine which was being supplied water. They took up positions between the two railway lines. Saee son of Khan Muhammad after raising a Lalkara that Abbas etc. shall not be spared, opened fire alongwith Ghulam Rasul, Iftikhar Ahmad and Saee son of Abdullah, from their weapons as a result of which Ghulam Abbas who was going ahead of others, received fire shots on the face and fell down. Thereafter, all the accused started firing indiscriminately. The complainant alongwith his companions ran towards Jungla on the platform and took shelter there. Fateh Muhammad son of Bagh Ali, a passenger suffered injuries as a result of the firing. The accused then ran away towards north. Motive for the occurrence was a case registered against the complainant, his deceased brother Abbas and 14 others under section 307/325/326/148/149, P.P.C. for having caused injuries to Muhammad Yar son of Jano and Abbas son of Abdullah. In the said case only six persons had been challaned.

4. Amjad Karim, S.I. after recording statement (Exh.P.A.) went to the place of occurrence. He despatched the dead body of Ghulam Abbas for post?-mortem examination after preparing injury statement (Exh.P.N.) and inquest report (Exh.P.O.). He also collected blood‑stained earth from the spot vide memo. Exh.P.G. He went to Phalia Hospital to record the statement of Fateh Muhammad injured P.W., who was admitted there. The Medical Officer, on his query, expressed opinion that Fateh Muhammad was not fit to make a statement on that day. His statement was recorded by the S.I. on 4‑3‑1983. Sadiq (acquitted accused was arrested by him on 10‑3‑1983, Iftikhar Ahmad, after arrest, led to the recovery of, gun (P.12) on 15‑3‑1983, from the house of Muhammad Sadiq Sahi situated in Mandi Bahauddin, which was taken into possession vide memo. Exh.P.P. All other accused were arrested on 16‑3?1983. Pervaiz led to the recovery of rifle (P.8) on 23‑3‑1983, which was taken into possession vide memo. Exh.P.J. Mukhtar led to the recovery of gun (P.9) on the same day which was taken into possession. vide memo. Exh.P.K. Saee son of Khano (deceased) led to the recovery of gun (P.10) on 30‑3‑1983, which was taken into possession vide memo. Exh.P.L. Saee son of Abdullah led to the recovery of gun (P.11) on the same day, which was taken into possession vide memo. Exh.P.M. Iftikhar led to the recovery of gun (P.12) on 15‑3‑1983, which was taken into possession vide memo. Exh.P.B. After completion of necessary investigation, challan was put to Court.

5. Sixteen prosecution witnesses were examined at the trial. Zafar Hayat and Nazir eye‑witnesses named in the F.I.R. were given up. Dr. Nazir Ahmad Anwar, who had medically examined Fateh Muhammad P.W. and had performed autopsy on the dead body of Abbas deceased appeared as P.W.4. He had noted following injuries on the person of Fateh Muhammad:‑ (1‑3)Three fire‑arm wounds of inlet each 3/4 c.m. x 3/4 c.m. over the front of lower part of right leg. There was fracture of tibia and fibula underneath. (4) A fire‑arm wound of exit 3/4 c.m. x 3/4 c.m. over the posterior side of lower part of right le. (5) A fire‑arm wound of inlet 3/4 c.m. x 3/4 c.m. on the back of left leg. (6) A fire‑arm wound of exit 3/4 c.m. x 3/4 c.m. over the front of left leg. One pellet was removed from the back of lower part of right leg. The injuries were opined to have been caused by a lire‑arm within the duration of 3 to 6 hours. Following injuries were noted on the body of Abbas deceased‑.‑ (1) A furrow type of fire‑arm wound, 2‑1/4 c.m. x 1 c.m. superficial grazing the skin, alongwith ventral side of right forearm. Corresponding perforation in the shirt was present. (2) A fire‑arm wound inlet 2 c.m. x 1 c.m. x going into maxilla, below the left eye. (3 to 7) Five fire‑arm wounds of inlet each 3/4 c.m. x 3/4 c.m. near the left angle of the mouth, in an area of 3 c.m, x 3 c.m. On dissection left side of both jaws were found fractured. Two large size pellets were recovered from this area. (8) A fire‑arm wound of inlet 3/4 c.m. x 3/4 c.m. going into the bone lateral to left eye. (9) A fire‑arm wound of inlet 3/4 c.m. x 3/4 c.m. going into the lower jaw over the left cheek. (10 & 11) Two fire‑arm wounds of inlet each 3/4 c.m. x 3/4 c.m. going into the muscles below the left pinna. (12 to 17) Six fire‑arm wounds of inlet each 3/4 c.m. x 3/4 c.m. going into the muscles over the left side of neck. A large size pellet was removed from the base of skull. The stomach was found to contain only one ounce of fluid material. Death was opined to have occurred due to haemorrhage and shock, as a result of all the injuries, which have been opined to have been caused by fire‑arm.

6. Muhammad Anar (P.W.I.), Muhammad Arshed (P.W.3), Fateh Muhammad (P.W.11) and Mehdi (P.W.14) deposed the ocular account. Muhammad Anar repeated the facts given by him in the F.I.R. In addition, he gave relationship of all the accused among themselves. During cross?-examination, he admitted that Saee son of Abdullah was complainant in the case registered against him and 15 others, which included his uncle Shera and Arshed P.W. brother of the wife of the deceased. He also admitted that a year prior to the occurrence, he alongwith his brother Ghulam Abbas deceased and uncle Shera, had purchased eight Acres of land from Fazal Begum, a relation of Soeni son of Namdar (appellant). He also admitted that Soeni (accused) had filed a suit for a declaration against them. He denied the suggestion that it was on account of dispute of that land that he alongwith his brother (deceased) uncle Shera and others had caused injuries to Ghulam Abbas and Fateh Muhammad. He explained that none else than the deceased and Fateh Muhammad had suffered injuries during this occurrence. He also admitted that his father and deceased Ghulam Abbas were challaned in a murder case, which had taken place 8 years prior to the present occurrence at Railway Station Chailianwala. He further admitted that Ghulam Abbas deceased was challaned in another murder case five years prior to the present occurrence. Muhammad Arshed (P.W.3) corroborated the statement made by P.W.1 in so far as it pertained to the actual occurrence. During cross‑examination, he stated that Mehdi Khan P.W. had stayed with them for the night and that they were going to Mandi Bahauddin to furnish bail bonds, for Yasin, Yaro, Nazir, Saeed and Rehmat. He stated that tickets were not with him and expressed inability to state as to with whom they were. In answer to another question, he stated that they were not going in a line but were walking in a group. He stated that many other persons besides the witnesses and railway employees had also' come to the dead body before the arrival of the police. He admitted that the deceased was married to his sister. Fateh Muhammad (P.W.11) stated that eight persons had fired at the deceased on the day of occurrence, as a result of which he had also suffered injuries. He did not name anyone of them and expressed inability to state whether any of the eight persons present in Court as accused had participated in the occurrence. He did not name any of the eye‑witnesses. Mehdi (P.W.14), corroborated the statement made by P.W.1 in so far as it pertained to the occurrence. During cross‑examination, he admitted that his uncle Khushi Muhammad was complainant in the case registered under section 307 etc. P.P.C. against accused Saee son of Abdullah, his son Pervaiz and Mukhtar accused. He admitted that he was a witness in that case. He expressed inability to say whether any railway employee came to the spot or not. He stated that he had left the place of occurrence at 2‑30 ‑p.m. for Dhok Kasib alongwith given up P.W. Zafar Hayat, and Arshed (P.W.3). P.Ws.1, 3 and 14 denied the suggestion that they had not witnessed the occurrence. Ghulam Abbas son of Sardar Khan, who was examined as P.W. 15, to depose about having seen 7/8 persons running from the side of the place of occurrence, did not support the prosecution case. He was declared hostile and was allowed to be cross‑examined, but nothing could be elicited from him in favour of the prosecution. Amjad Karim S.I. gave the details of the registration of case, arrest of the accused and the recoveries effected at the instance of some of the accused. He denied that he had conducted the investigation partially. 7.All the appellants during their examination denied the prosecution case as a whole and pleaded innocence. They admitted inter se relationship. Certified copies Exhs. D.B., D.C., D.D., D.E., D.F. and D.G., surety bonds of Muhammad Yar, Nazir Yasin, Salahoon, Nazir son of Salehoon and. Kalo submitted before the Ilaqa Magistrate, Mandi Bahauddin on 27‑2‑1983 and accepted by the Magistrate on 28‑2‑1983 in case under section 307/326 etc. P.P ;C., P.S. Pahrianwala, were tendered in evidence. The sureties in the case were identified and certified to be persons of means by Mehdi Khan Lambardar of Dhok Malowal. (This Mehdi Khan had appeared as P.W.14 at the trial). Ghulam Farid, H.C. Mazhar lqbal Ahmad, Ahlmad of the Court of M.S. 30, Mandi Bahauddin and Syed Tufail Hussain, M.H.C. P.S. Pahrianwala were examined as D.Ws. 1, 2 and 3 respectively. D.W.1 produced copy of the letter written by S.P. Railways, Rawalpindi to S.P. Gujrat. D.VK.2 produced original surety bonds of Muhammad Yar alias Yara, Nazir, Yasin, Salehoon and Kalo accused in the case under section 307/326 etc. P.P.C., P.S. Pahrianwala, accepted by M.S. 30, Mandi Bahauddin on 28‑2‑1983. During cross‑examination, he stated that those surety bonds were produced on 27‑2‑1983 but were placed before the Presiding Officer on 28‑2‑1983, as he was on leave on 27‑2‑1983. (Original were returned and photo copies were placed on record). D.W.3 produced F.I.R. No. 127, P.S. Pahrianwala dated 16‑12‑1982. Attested copy of the same was placed on record as Exh.D.H. Certified copy of the order passed by Malik Khizar Hayat, Additional Sessions Judge, Gujrat, on 3‑2?1983'and certified copy of the statement of Mehdi Khan (Exh.D.L.) and certified copy of the statement of Ghulam Rasul (EXh.DM.) were also produced in defence.

8. Statement of Mr.Sarfraz Khan, S.P. Sheikhupura, who had investigated this case while posted as S.P. Crimes, Lahore, was recorded as C.W.1. He stated that on investigation he had come to the conclusion that seven persons, i.e. Sadiq (acquitted accused), Iftikhar Ahmad, Saee Muhammad son of Ali Muhammad, Ghulam Rasul, Saee Muhammad son of Khan Muhammad (deceased accused), Soeni and Saee son of Abdullah, were innocent per his investigation and that according to his investigation only Pervaiz and Mukhtar were culprits. During cross‑examination; he stated that he had specifically recorded the reasons for declaring seven accused as innocent. He added that some persons were nominated by both the parties for taking oath but the oath was not given as both the parties were not prepared to accept the nominees of the other.

9. Learned counsel for the appellant after taking us through the evidence criticised the impugned judgment and submitted that the only injured witness in this case namely Fateh Muhammad, did not name the appellants as assailants while making statement at the trial and that Muhammad Annar and Muhammad Arshad were not only closely related to the deceased but also inimical to the accused, that Mehdi P.W. was a partyman of the complainant and was a witness in an earlier case registered against some of the accused at the instance of his ,uncle. Learned counsel submitted that the occular account furnished in this case by the three eye‑witnesses does not find corroboration from any other evidence, as the recoveries of guns effected at the instance of some of the accused are of no consequence, as the weapons were not sent to the office of Forensic Science Laboratory. Lastly learned counsel submitted that the parties have compromised and so there is a mitigating factor.

10. Learned counsel for the State defended the judgment of the trial Court.

11. Before adjudicating the contentions raised by the learned counsel for the parties, we would like to note here that the complainant had submitted an application, that they have compromised with the appellants. He had also filed his own affidavit and the affidavits of Mehdi Khan, Fateh Muhammad, Muhammad Arshad, P.Ws. alongwith Mst. Shahnaz Akhtar widow of the deceased and Mst. Rasul Bibi, mother of the deceased on 12‑11‑1988. All of them except Muhammad Arshad appeared today and made statements vouchsafing the fact that they had compromised with the appellants and have forgiven them. The father of the deceased had died prior to the occurrence. He had no other brother. His eldest child, out of three left by him, is stated to be 10 years old and the youngest was born six months after his death. The complainant, who is real brother of the deceased, his mother and widow of the deceased have categorically stated of having forgiven the appellants in the name of God.

12. Fateh Muhammad (P.W.11), the only person who had suffered injuries during the occurrence apart from the deceased, was a stranger to both the parties. He expressed inability to state at the trial that any of the accused facing; trial was from amongst the assailants. He did not certify the presence of any of the witnesses named hi the F.I.R. and produced at the trial. His evidence is, therefore, of no consequence, for determining the guilt or otherwise of the appellants.

13. Mehdi (P.W.14) is not related to the complainant party. It is, however, on record that he was a member of the complainant party. In that he was not only a witness in a case registered against some of the accused under section 307 etc. P.P.C. at the instance of his uncle but had also been helping the complainant party in other case. It is his own case that on the day of occurrence he was going with the complainant party to help them in furnishing bail bonds of some of their partymen in the Court of Magistrate at Mandi Bahauddin, who had been allowed bail in case registered against them under section 307 etc. P.P.C. There is, thus; enough material on record to hold that he was an interested and inimical witness. The learned trial Judge had also come to the same conclusion. The other important aspect requiring consideration before accepting his testimony, is the fact, that according to the appellants, he had not witnessed the occurrence, and was present on that date m the Court of M.S. 30 Mandi Bahauddin. Reliance in this regard has been placed on the certified copies of the surety bonds of Muhammad Yar alias Yara, Nazir son of Salehoon, Yasin, Salehoon son of Kalo and Kalo (Exhs. D.B., D.C., D.D., D.E. and D.F. respectively). These Exhs. show that the bail bonds of the persons named above were accepted by M.S. 30 on 28‑2‑1983 in a case registered under section 307 etc.? P.P.C. at P.S. Pahrianwala, and the sureties of those bonds were identified by, Mehdi Khan Lambardar of Dhok Malowal, i.e. P.W.14. The claim of Mehdi Khan in the light of these documents, of being present at the spot at the time of occurrence stands baffled, if not disproved. It is not his case that he had gone to the Court of Magistrate to attest the, surety bonds after the occurrence was over. Tic rather stated during cross‑examination that he had remained at the spot till 2‑30 p.m. and thereafter had left for Dhok Kasib. His presence, in the circumstances at the place of occurrence, is highly doubtful and cannot be accepted safely. His testimony, therefore, is excluded from consideration, against the appellants.

14. The only evidence which remains in the field, is, the statements made by Muhammad Annar (P.W.1) and Muhammad Arshad (P.W.3) apart from the evidence of motive furnished by the complainant and the medical evidence.

15. It is on record that the parties were inimically disposed towards each other. Quite a few cases were registered inter se the parties prior to the present occurrence, wherein one party had been playing the role of the complainant while the other party used to stand in the dock for trial. Civil litigation between the parties about some land was also pending. The animosity of the witnesses with the appellants, therefore, stands unambiguously proved. The learned trial Judge had also come to the same view, after recounting the earlier incidents that had occurred between the parties. C.W.1, former S.P. of Crimes Branch, who had investigated the case had come to the conclusion that seven persons named in the F.I.R. as accused had no connection with the commission of crime. He had declared them innocent. Nothing was recovered from any of the appellants which could connect them with the crime. The weapons recovered from some of them were not sent to the office of the Forensic Science Laboratory, as no empty was found from the spot. Non‑availability of the empties from the spot also casts doubts on the prosecution version that a large number of accused had fired a large number of shots. It is not the case of the prosecution that the empties had been picked up by the accused before they had left the spot, nor the prosecution had furnished any explanation that empties were lost by way of trampling, as a result of movement of the people at the spot.

15. As a result of the above analysis of the evidence, the conviction of the appellants cannot be maintained merely on the uncorroborated testimonies of two highly inimical and closely related witnesses. The prosecution case is full of doubts. The appeal is, therefore, allowed and the appellants are acquitted by wav of grant of benefit of doubt.

16. The revision petition (Criminal Revision No. 538 of 1986) filed by the complainant is dismissed, as the complainant has not pressed the same, on account of having compromised with the accused‑respondents. SA./I‑114/L???????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.