1987 PLP 1264 (SCMR)

(9) Lacerated penetrating wound .7 c.m. x .6 c.m. on the right para umbilical region. (10) Lacerated penetrating wound .7 c.m. x .7 c.m. upper right iliac region. (11) Lacerated penetrating wound .7 x .7 outer upper right thigh. (12) A contusion 5 c.m. x 5 c.m. over the left upper and lower eye‑lid." Injuries 5 to 11 were firearm entry wounds whereas injuries 1 to 4 and 12 had been inflicted by blunt means or weapon. Six bullets were recovered at the left abdominal flank and upper front right thigh as shown in Exh.PY/1. The injuries particularly 1, 2 and 5 to 10 were sufficient in an ordinary course of nature to cause death through bleeding and shock. After observation of the general condition of Feroze Din deceased, the doctor admitted to have made the following entries at page 1 of the post‑mortem report: "Portion of the post‑mortem report now marked as ' A' is correct. It is written in mark 'A' that body worn shirt, Saluka and Dhoti which were all bloodstained and showed holes corresponding to external injuries. I have also written that 'and/or area was stained with gun powder, smoke'. Volunteered that the clothes of the deceased were stained with gun powder, and not the skin of the belly of Feroze Din deceased." He further admitted that it was possible that injuries 1, 2 and 12 on the person of Feroze Din deceased were caused by one and the same weapon; they could be caused by a Dang. All the firearm injuries on the person of Feroze Din were on his right side. He further admitted not to have given detail in mark 'A' about the corresponding holes against the individual injuries; that there were three clothes on the person of the deceased, i.e. shirt, Saluka and Chaddar; that there was no hole on the front side of the shirt; that there was, however, a hole on a side of the shirt but there was no hole on the saluka, it was only blood‑stained, and that there were three bullet holes on the Dhoti. The post‑mortem examination of Mst. Hidayat Bibi was also conducted by this very witness on 3‑3‑1977 at 12.30 p.m. and he found the following injuries on her person: (1) "Lacerated punched in circular wound 3 mm in diameter over outer part of sclera of left eye through and through its thickness. (2) Twenty lacerated penetrating circular wounds each about .3c.m. x .3 c.m. spread all over front of forehead and face. (3) Multiple lacerated penetrating wounds each about .3 c. m. x .3 c.m. over front of neck, upper chest (mostly right side) and right shoulder. The count was 15, 34 and 12 respectively. (4) Three penetrating lacerated wounds front mid‑night forearm each about .3 c.m. x .3 c.m. (5) Six penetrating lacerated wounds over right hypochondric and para umbilical region each about .3 c.m. x .3 c.m. (6) Three penetrating lacerated wounds right gluteal region each about .3 c.m. x .3 c.m. (7) Twenty‑nine lacerated penetrating wounds front lower left thigh, left knee and upper left leg each about .3 c.m. x .3 c. m. (8) A vertical stitched right paramedieum incised wound 22 c.m. long. (9) Stitched incised wound 3 c.m. long over right para umbilical region with a drainage due protruding out." Injuries Nos.8 and 9 were surgical incision whereas injuries Nos.l to 7 had been inflicted by firearm weapon. In injury No.2, there were 20 pellets on her forehead and face, injury No.3 consisted of multiple pellet wounds on front of neck, upper chest and right shoulder. Injury No.5 was under the chest at the right side of the abdomen and it extended to the right side of the umbilicus. The inner organs of the deceased, he deposed, were also injured and it was not likely that after receipt of about 120 pellet wounds which also injured many internal organs the deceased would have been able to give statement.

7. According to the report of the Firearm Expert Exh.PHH‑

(1) "Eight crime shells of .12 bore marked as C6 to C13 had not been fired from the .12 bore SBBL shotgun No.32806 NF. (2) Five crime shells of .32 bore marked as C1 to C5 and the six lead bullets marked as 131 to B6 had been fired from the .32 bore revolver No.BB19483 marked as R3. (3) The .32 bore revolver No.BB17405 marked as R1 and the .32 bore revolver No.A8268 marked as R2 are in working order in their present condition. (4) No opinion could be given as to whether or not the three crime shells of .12 bore marked as C14 to C16 had been fired from the .12 bore gun because the points of similarity or dissimilarity are not forthcoming in between the test shells and these crime shells."

8. The three acquitted accused in their statements under section 342 Cr.P.C. denied the charge of murder. Muhammad Ali and Shaukat Ali deposed that they surrendered themselves to the police and produced before the police their respective licensed revolvers. Lal Din also stated that he surrendered himself to the police and deposed that the recovery of himam dasta at his instance was incorrect. Muhammad Siddique petitioner denied the charges. He also denied the motive and deposed that he voluntarily appeared before the police and produced his gun P.16 and licence P.17 which were taken into possession. As to the charge against him, he deposed that he was falsely implicated by Muhammad Sharif because he was a recovery witness of the weapons of offence in the murder case of Jamal Din against Muhammad Sharif and Feroze Din and he also produced documents Exhs.D.1, D.2 and D.3. So far as Kamal.Din appellant is concerned, he admitted the murder of his brother Jamal Din by Sadiq, Sharif, Muhammad Hussain and Feroze Din. He also admitted that all the accused in the above case excepting Sadiq were admitted to bail, by the High Court and their efforts to get their bail cancelled in the High Court failed and their further application in the Supreme Court for the cancellation of the bail of the above accused was pending during the days of the occurrence. He denied the present occurrence as well as the taking of the dead body of Feroze Din inside his house for destroying. He denied his arrest on 7‑3‑1977, but stated that he surrendered himself before the police and that he did not lead the police to the recovery of revolver P.10 though it belonged to him; that on his surrender to the police he produced its licence and that the pistol was in fact recovered and taken into possession by the police from near the dead body of Feroze Din. He also denied the removal of blood‑stained shirt P.7 and Chaddar P.8 by the police from his person at the time of his arrest and stated that this is a mere fabrication on the part of the police. He expressed unawareness about the result of the Firearms Expert's report about the crime empties recovered from the spot allegedly fired from his pistol. In his detailed statement he deposed that near the days of occurrence Feroze Din deceased had arranged the marriage of his son Muhammad Sharif and in this background Feroze Din had collected 5/6 Goondas from different villages in his house. He (Kamal Din) apprehended danger and when he came to know about this fact a day prior to the occurrence he alongwith other members of his family left the house and went to his village at Manga Mandi and left his house to be guarded by Muhammad Akbar and Muhammad Hayat. This fact was not known to Feroze Din's party that he had left the house. Thus on the day of occurrence Feroze Din deceased alongwith 5/6 Goondas started firing at Muhammad Hayat and in order to save himself Muhammad Hayat fired at Feroze Din with his licensed revolver and killed him, while Mst. Hidayat Bibi was injured by the firing by Feroze Din and his party‑men and Nazir Ahmad P.W. was also hit by their fires; because Muhammad Hayat and Akbar were not known to Feroze Din etc., they have falsely implicated him in this case; his licensed revolver was left by Muhammad Hayat near the dead body of Feroze Din which was taken into possession by the police and he has been falsely implicated in this case.

9. The trial culminated in the conviction of Kamal Din appellant and Muhammad Siddique petitioner and their co‑accused, namely, Muhammad Ali, Shaukat Ali and Lal Din, under sections 302/307/149 and 148, P.P.C. and sentence as per judgment, dated 5‑3‑1979. The above judgment was subject‑matter of Criminal Appeal No.302/1.97 filed by Kamal Din and Muhammad Siddique and their co‑accused, Criminal Revision No.697/1979 filed by the State and Criminal Revision No.698/1979 filed by Muhammad Sharif for the enhancement of sentence. At the time of hearing of the revision petition, the learned High Court issued suo motu show‑cause notice to the convicts for the enhancement of their sentence.

10. After hearing the appeal and the revision petitions the learned Judges of the High Court, vide their judgment, dated 21‑2‑1982, only maintained the conviction of Kamal Din appellant and Muhammad Siddique petitioner under section 302, P.P.C. for causing the murder of Feroze Din and Mst.Hidayat Bibi, respectively. Muhammad Siddique petitioner was also held guilty under section 307, P.P.C. for murderous assault on Nazir Ahmad P.W. As for the sentence, they maintained the sentence of imprisonment for life imposed by the trial Court on Muhammad Siddique but enhanced the sentence of fine to Rs.20,000 out of which a sum of Rs.15,000 was ordered to be paid to the heirs of Mst. Hidayat Bibi and Rs.5.000 to Nazir Ahmad. So far as the sentence of Kamal Din is concerned, his sentence was enhanced to death. The sentence of fine was also enhanced to Rs.10,000 and it was ordered that this amount should be paid to the heirs of Feroze Din deceased. To the above extent the suo motu revision was accepted. Muhammad Ali, Shaukat Ali and Lal Din were, however, acquitted.

11. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. The High Court has acquitted Muhammad Ali, Shaukat Ali and Lal Din because the ocular account of the eye‑witnesses did not find support from the other material available on the record. We are thus concerned with the case of Kamal Din who is convicted under section 302/34, P.P. C. and given death and Muhammad Siddique whose conviction and sentence under section 302/307/34, P.P.C. has been maintained. In coming to the above conclusion, the learned Judges have relied on the eye version account furnished by Muhammad Sharif P.W.5 (the son of Feroze Din deceased), Nazir Ahmad P.W.6 and Ghulam Hussain P.W.7 (though related inter se but held to have no relationship with the deceased) coupled with the other circumstantial evidence.

12. Before dealing with the main case, a few words about the two eye‑witnesses, namely, Nazir Ahmad, P.W.6 and Ghulam Hussain P.W.7 would not be out of place because they have been relied upon by the High Court by holding that they have no relationship with the deceased. There is no doubt that Nazir Ahmad P.W.6 has stamps of injuries on his person and thus his presence at the spot cannot be doubted. His presence at the spot notwithstanding, it was required of the High Court to have examined his conduct as to truthfulness. The first circumstance which has created doubt about his truthfulness was that he tried his utmost to conceal that Mst.Fatima who was married to Ismail, the brother of Feroze Din deceased, was his sister. But it was after great efforts on the part of the defence that ultimately he had to admit that Mst. Fatima is his sister and is the wife of Ismail, the brother of Feroze Din deceased. The other circumstance which has tarnished his being a truthful witness was that he has exonerated Muhammad Siddique petitioner altogether from participation in the crime. So far as Ghulam Hussain P.W.7 is concerned, he is the brother‑in‑law of Nazir Ahmad P.W.6, i.e. the sister of Nazir Ahmad is married to him. Though he has admitted that Feroze Din deceased was the brother of Ismail but has expressed his ignorance that Mst . Fatima is the wife of Ismail. This obviously is a deliberate attempt on the part of this witness to conceal his relationship with the deceased. In view of the above, it would be wrong to assumes that Nazir Ahmad and Ghulam Hussain P.Ws., though related inter, se, had no relationship with the deceased. True that mere relationship of these witnesses with the deceased would in no way destroy their, credibility but then deliberate attempts on their part to conceal certain established facts has undoubtedly created doubt in our mind about their veracity. Thus the version of the occurrence by all the three witnesses would require very strong corroboration from unimpeachable sources.

13. Besides the ocular evidence in this case the prosecution as against Kamal Din appellant has very strongly relied on the recovery of his .32 bore revolver P.10 at his instance, the matching of five empties marked as C1 to C5 recovered from the spot, six lead bullets extracted from the corpse of Feroze Din and, of course, the recovery of the dead body of Feroze Din from the house of Kamal Dir appellant Similarly in the case of Muhammad Siddique petitioner, reliance was placed on the recovery of his .12 bore shotgun P.16 at his instance coupled with the recovery of as many as eleven .12 bore empty cartridges PH/6‑16 collected from the spot. These pieces of circumstantial evidence have been a subject of severe criticism at the hands of the learned counsel for the defence. Their case was that the whole case of the prosecution is based on dishonest investigation, concoction and fabrication. To elaborate the above, in the first instance we were referred to the manner in which the alleged statement of Mst.Hidayat Bibi Exh. P.DD was recorded or for the matter of that got recorded by Muhammad Siddique, Inspector, who appeared as P.W.15. According to him, Mst.Hidayat Bibi was seriously injured and, therefore, was in a bad condition. However, she was talking and from the start till the end of the statement Exh.PDD she remained in senses. It has been urged that the fact that she could make any such statement has been contradicted by Dr. Tahir Anis P.W.12 who admitted that it was not likely that after receipt of about 120 pellet wounds which also injured many internal organs of the deceased Mst. Hidayat Bibi would "have been able to make a statement. Further, they submitted that it was the case of the prosecution that after the occurrence all the accused ran away from the place of occurrence alongwith their respective arms and were not seen thereafter, then how was it that on 15‑3‑1977 Muhammad Ali, Shaukat Ali and Muhammad Siddique after eleven days of their arrest and Kamal Din after eight days of his arrest led the police to their respective houses where from the weapons which were attributed to them were recovered. It also does not appeal to reason, they submitted, that Kamal Din will roam about for five days with his blood‑stained shirt and Chaddar on his person. The more questionable aspect of the investigation in this case, according to them, was that the recovery witness of all the incriminating articles from the public was Siraj Din P.W.9 who was a hostile and interested witness in that in the case of murder of Jamal Din he appeared as defence witness for Feroze Din deceased and his son Muhammad Sharif, therefore, it was not difficult for the investigating agency to manipulate the recoveries yet another circumstance, they submitted, which has destroyed the case of the prosecution in its totality is that the five crime empties allegedly fired from the pistol of Kamal Din appellant and eleven shotgun empties alleged to have been fired by Muhammad Siddique with his shotgun were recovered on 2‑3‑1977 and so was the taking into possession of the six lead bullets. According to Muhammad Siddique, P.W.15, Kamal Din appellant, Muhammad Siddique petitioner, Muhammad Ali and Shaukat Ali, the acquitted accused, led him, that is, P.W.15, to the recovery of the weapons of offence on 15‑3‑1977; that according to the report Exh.P.HH all these articles were sent together to the Firearms Expert on 18‑3‑1977. Why the crime empties and lead bullets were kept by the police for such a long time and then sent them together with the weapons of offence is obviously open to serious suspicion. The explanation given by Rashid Ahmad P.W.14 who was the carrier of these articles, in no way has advanced the case of the prosecution, it rather created more doubt because he is absolutely silent as to what type of objection was raised by the Firearms Expert in respect of these recoveries. They further submitted that though according to the Firearms Expert's report Exh.P.HH the five revolver empties and the six lead bullets had been fired from the revolver owned by Kamal Din but vehemently urged that there was enough time with the police to fabricate evidence against Kamal Din appellant who is alleged to have direct motive. So far as the recovery of the dead body of Feroze Din from the house of Kamal Din is concerned, the prosecution's allegation that it was carried there to be destroyed has been described as ridiculous. Two murders, they submitted, had been committed and a person was injured so in a situation like this, under no circumstance, the accused would stay at the place of occurrence for a moment and would run away at the earliest opportunity; and further Kamal Din was not a fool to act in a manner in order to create a very strong incriminating evidence against him.

14. We have very carefully examined the entire evidence, ocular as well as circumstantial, in the light of the contentions raised by the learned counsel for the parties and have ultimately reached a conclusion that the prosecution has not been able to make out its case against Kamal Din appellant and Muhammad Siddique petitioner beyond reasonable doubt. It is broad‑daylight occurrence, enacted on the thoroughfare of the village. All the three witnesses, namely, Muhammad Sharif P.W.5, Nazir Ahmad P.W.6 and Ghulam Hussain P.W.7 at the trial to a greater extent have stuck to the version of the occurrence given in the F.I.R. Kamal Din appellant and Muhammad Siddique petitioner have been given specific roles. It has been alleged in the F.I.R. and at the trial that when Feroze Din deceased on receipt of injury on his chin at the hands of Muhammad Siddique petitioner fell down on the ground, he was surrounded by Kamal Din appellant, Muhammad Ali and Shaukat Ali, the two acquitted accused, all armed with revolvers. Feroze Din's shirt was raised from his belly and each of them fired 4/5 shots with their revolvers from a close range, as a result of which the deceased received injuries on his abdomen, flank and right thigh. The manner in which the occurrence has been described, the deceased should have at leas 12/15 firearm injuries on his person, but this, however, is not the case because according to the post‑mortem report, the deceased had only seven fire‑arm injuries on his person. The fact that the deceased was surrounded by his assailants and was fired at has been belied by the medical evidence in that the post‑mortem report has shown that the deceased had all the injuries on his right side. Again, the fact that before firing at the deceased the assailants had raised his shirt from his belly has not been established by the medical evidence in that Dr.Tahir Anis P.W.12 has admitted at the trial that it was correct that according to mark 'A' on Exh.PY all clothes showed holes or gun powder smoke corresponding to external injuries. Yet further, the fact that Muhammad Ali, Shaukat Ali, the acquitted accused, did not participate in the firing at the deceased has been proved from the report of the Firearms Expert Exh.P.HH, according to which none of the crime empties or the lead bullets has been fired from the revolvers recovered at their instance. The eye‑version account given at the trial against Muhammad Siddique petitioner is not only discrepant but is contradictory in that Nazir Ahmad who is an injured P.W. categorically admitted that Muhammad Siddique petitioner did not take part in the occurrence. Another circumstances which has created doubt about the participation of Muhammad Siddique in the occurrence is the report of the Firearms Expert Exh.P.HH According to this report, none of the eight .12 bore empties found at the spot was fired from his gun. No opinion about the remaining three shotgun empties could be given because the points of their similarity or dissimilarity were not forthcoming. The possibility, therefore, that Mst.Hidayat Bibi deceased and Nazir Ahmad P.W. received injuries as a result of firing by the complainant side, as alleged by the defence, cannot be ruled out. It is, therefore, manifest that the eye‑witnesses have twisted and distorted the facts and the occurrence did not take place in the manner described by them.

15. The motive set up by the prosecution too has not been established in that the second application of Muhammad Ali to get the bail of Feroze Din deceased and others cancelled was still pending in the Supreme Court when the occurrence took place. It is, therefore, beyond comprehension that a party which was seeking its redress consistently through the process of the Court would all of a sudden take the law in its own hands.

16. In view of the above we hold that the prosecution has failed to establish its case against Kamal Din appellant and Muhammad Siddique petitioner beyond reasonable doubt. The appeal of Kamal Din is, therefore, accepted and his conviction and sentence set Similarly, we convert the petition of Muhammad Siddique into appeal and accept the same, thus setting aside his conviction and sentence as well. Both have already been ordered to be released vide our order, dated 1‑4‑1987. As a result of the above, the criminal petition filed by the complainant fails and is hereby dismissed. M.B.A/K‑12/S Order accordingly.