1983 P Cr (PLP)

This judgment will dispose of the two appeals, Criminal Appeal No. 248 of 1975 of Basher, Abdul Majid and Nek Muhammad and Cr. Appeal No. 249 of 1975 of Yaqoob, separately addressed against the judgment dated the 27th of February, 1975 of Rao Muhammad Hayat, then Additional Sessions Judge, Multan, convicting them under sections 302/34 and 307/34 of the Pakistan Penal Code awarding life imprisonment with a fine of Rs. 1,000 each on the first offence and rigorous imprisonment for four years each for the second. Six of their co-accused were, however, acquitted in this case.

2. The incident involving the murder of Nadra (deceased) and Attempt on the lives of Sikander, Ali, Amir, Zahur, Munawar, Adil, Sadiq, Hadi and Aliya in prosecution of the common object of an unlawful assembly formed by the four appellants and six acquitted accused had taken place on tne evening of 31st July, 1972 in the area of Chak No. 176/E B. of Police Station Vehari on a dispute about the flood water of Nala Sukh Beyas as reported by Muhammad Anwar (P. W. 6) to Sub-Inspector Shabbir Hussain (P. W. 20) who recorded his statement (Exh..P. A) at 9-00 a. m. on the next day, i. e. 1st of August, 1972 near Pakhi Morh where he met him during his ghusht.

3. The prosecution case in brief is that the party of Anwar com plainant resided in Chak No 176/E. B. While appellants and their acquit ted co-accused are residents of the adjoining Chak No. 188/E. B. and Nala Sukh Beyas flowed on the northern side of both these Chaks, which being in flood on the eventful evening had damaged the buns' set up to protect these abadis and the water had entered Chak No. 188/E. B, through the breach in Killa No. 25 of Square No. 3 of Chak No. 176;E. B. Where Anwar (complainant P. W. 6) along with Nadar (deceased), Ahmed, Alam, Amir Ali, Aliya, Sikander, Zahur and Munawar (p. Ws. 9 to 17), Sadiq, Hamid, Adil, Mumtaz (not produced were guarding the rest of this bund. Bashir armed with pistol, Nek Muhammad, Abdul Majid and Yaqoob appellants carrying guns, Nasru, Bhoora. Raza Muhammad, Yousaf, Murad wielding lathis and Pannah empty handed, the six acquitted accused, came there and asked the comp lainant party to enlarge this breach so as to relieve pressure of the water from their abadi who refused to concede to their request. This annoyed them and on the exhortation of Pannah the acquitted accused the four appellants are said to have opened fire from their respective weapons, while their co-accused started showering lathi blows on the complainant party. As a result of this onslaught Nadra (deceased), Amir, Ali, Aliya, Zahur, Sikandar, Sadiq and Hamid named above-received lire-arm injuries while Adil and Munawar had suffered lathi blows. From among them Nadar succumbed to his injuries and the appellants party took away his dead body by dragging it for some distance and then threw it in the flowing water. Anwar, Alam P. Ws. and Mumtaz (not produced) had saved them selves by taking shelter in a ditch. The appellants and their party, however, threw a cordon for the night around this Chak which accord ing to Anwar did not permit them to lodge their report before 9-0o a. m. on the next morning. After forwarding the statement (Exh. P. A.) of Anwar (P. W. 6) to the police station for the formal registration of the case Sub-Inspector Shabbir Hussain (P. W. 20) reached the spot and despatched the dead body to the mortuary along with its injury statement Exh. P. B. inquest report Exh. P. C. for post-mortem examination. During inspec tion of the spot he recovered two empties (P. 1/1-2) as also blood stained earth and sealed the same into separate parcels vide Exh. P. B.,P. C. and P. D. respectively. On 2nd August 1972 Nek Muhammad and Abdul Majid appellants produced the guns (P. 2) and (P. 3) which were also made into separate parcels vide Exhs. P. E. and P. F. He had arrested these appellants along with Raja Muhammad and Muhammad Pannah (acquitted accused) on the same day. Foot Constable Ghulam Rasul (P. W. 8) brought back from the mortuary golden ear-rings (P.4/1-2), tawiz (P.5) and produced them before the Sub-Inspector vide Exh. P, G. He had also taken into possession blood-stained Chadar (P. 11) of Amir P. W. and Chadar (P. 12) of Aliya P. W. vide Exhs. P. N. and P. O. respectively. The phial (P. 3) containing pellets sent by the doctor was also sealed vide Exh. P. O. On 6th August, 1972, he arrested Bhoora (acquitted accused) and Muhammad Yaqub appellant who produced dang (P. 7) and gun (P. 8) which were made into separate parcels vide Exhs. P. - U. and P. K. respectively. Murad and Nasru (acquitted accused) were also arrested on the same date. On the 8th of August 1972 he arrested Yousaf (acquitted accused) whild Bashir appellant was taken into custody on the 11th of August 1972 along with pistol (P. 9) and a cartridge (P. 10) which were sealed into a parcel vide Exh. P. L. The site plan Exh. P. R., P. R/1 and P. R/2 were prepared by Ali Ahmad Patwari (P.W.3) and the Sub-inspector after giving his notes in red ink on the same signed it in token of its correctness. He had also got Sadiq and Hamid medically examined through their injury statements Exhs. P. Z. A/1 and P. Z. B/1. All the sealed parcels were deposited in the malkhana and were sent in due course by the Moharrir Head Constable to the office of the Chemical Examiner and that of the Forensic Science Laboratory at Lahore. The earth recovered in this case was stained with human blood vide report Exh. P. Z. of the Chemical Examiner and Exh. P. Z. F. of the Serologist. According to the report Exh. P. Z./C of Mr. Anwar-ul-Haq Bajwa, Firearms Expert (P. W. 19) the crime shells marked as C- I (P. 1/1)had been fired from .12 bore S. B. B. L. shot-gun marked as `B' (Court Exh. P. 2) and the crime shell C-2 (P. I/2), had been fired from .12 bore S. B. B. L. shotgun marked as A (Court Exh. P. 3).

4. On 2nd August, 1972, at 7.00 a. m. Dr. Muhammad Aslam (P.W. I) held autopsy on the dead body of Nadra (deceased) and found the following injuries vide Exh. P. R.:- (1) A pellet wound circular " in diameter on the front of the right chest 3 '' towards the left of the right nipple and its level. The margins of the wound were congested. (2) A pellet wound circular " diameter on the front of the left side of the chest 2 " internal to and at the level of the left nipple. Margins of the injury were congested. (3) A pellet wound 6/10" in diameter on the outer aspect of the left side of the chest at the medial axillary line, 8" below the top of the left axilla. The margins were congested. (4) A pellet wound 4/10" in diameter on the left side of the abdomen 2 " towards the left of middle line and " below the left rib margin. (5) A pellet wound 4/10" in diameter on the left side of the abdomen 4 " towards the left of the middle line and just below the left rib margin. The injury was circular with congested margins. (6) A pellet wound 4/10" in diameter circular on the left side of abdomen 2 " below injury No. 5. (7) A pellet wound 4/10" in diameter, circular on the right side of the back of the chest, 8" towards the right of the middle line and 9" below the top of the right shoulder. (8) A pellet wound 6/10" x 4/10" transverse on the left side of the back of the chest, 3 " external to the middle line and 7" above the left illiac crest. (9) A pellet wound 3/10" in diameter on the back, just towards the right of and at the level of the 2nd lumber spine. (10) A pellet wound 6/10" X 4/ 10" over the back of the left hand I internal to the outer border of the left hand and 3/4" below left wrist. The margins were inverted and congested. (11) A pellet wound 4/10" in diameter on the outer side of the base of the left thumb. The margins were everted. Injuries Nos. 10 and 11 were communicated with each other, being wound of entry and exit respectively. Injuries Nos. 4, 5, and 6 were directed upwards, backwards and medially. The small, large gut and the stomach along with the omentum had multiple perforations. Last left rib was fractured. A pellet was tucked in the muscles of the left flank 2" towards the left of spine under injury No. 5 and had no exit. Injury No. 5 was wound of entry and its pellet was the one which had been mentioned above. The 12th dorsal spine had a pellet embedded in its body on the front under injury No. 4, which was wound of entry and its pellet was embedded in the body of the said spine. Injury No. 6 was wound of entry while injury No. 9 was its exit. Injuries Nos. 1 and 2 were directed backward. The covering of the head and the left side of heart was injured and perforated; the pellet under injury No. 2 had made an exit through injury No.

8. Chest cavity was full of blood. Due to injury No. 1 the right lung had a track of a pellet going backwards downward and making exit through injury No. 7. 7th rib was fractured. Injury No. 3 was wound of entry and was directed up, back ward and towards the right. The right lung at its lower part had also a track going towards the right and a pellet was embedded in the posterior wall of the right side of the chest at the space between 9th and 10th ribs. Right side of the chest cavity was also full of blood. The metacarpal bone on the left in the finger was fractured due to injuries Nos. 10 and

11. All injuries were -ante-mortem and had been caused by a firearm. Death was due to haemorrhage. The injuries were sufficient .to cause death in the ordinary course of life. The death was instantaneous and a period of about 36 to 48 hours passed between death and post-mortem examination. On 1st August 1972, the doctor examined Sikandar and found the following injury: -- A pellet wound 3/20" in diameter on the front of the left side of the chest, 1 " below the middle of the left colar bone. The depth of injury was not measured to avoid risk to the life of the injured. The area 6" round the injury had subcutaneous omphysema, confirming injury to the lung. The injury was grievous. On the same day at 5-00 p. m. the doctor examined Ali and found the following injuries vide Exh. P. T :- (1) Multiple pellet wounds about 100 in number on the front and sides of the right thigh, right knee, and the upper part of right leg. The pellets wound measured 10" in diameter and were circular except a few on the sides which alongated due to grazing of the pellet. (2) A pellet wound 1/10" in diameter on the front of the left thigh 6 above the left knee. (3) An abrasion 3/4" x 1/2" on the back of the right elbow. The injuries were simple. On the same day at 5-30 p. m. the doctor examined Kalloo and found the following injuries vide Exh. P. U :- (1) A contused wound 22" x 1/2'' deep to the galea on the right parietal eminence, the injury was curbed with convexity inwards. (2) A contusion mark 3" x 1" transverse on the right side on the back of the chest. (3) A swelling 3" x 2" on the antro-lateral aspect of the left thigh at about its middle. Injury No. 1 was kept under observation while the rest were simple. On the same day at 6-00 p. m., the doctor examined Amir P. W. and found the following injury vide Exh. P. V. :- Sixteen numbers of pellet wounds on the front the lower half of the left thigh and front of the left knee and upper part of the left leg. All the wounds were circular and each measured 1/10" in diameter. The depth varied from that of the skin to 1/5. The injury was kept under observation and had been caused by firearm. On the same day at 6-20 p. m. the doctor examined Adil and found the following injuries on his person vide Exh. P. X.:- (1) A contusion mark 1" x 1 " across the back. (2) A contusion mark 5" x 1" on the right side of the back of the chest an inch above the right side of injury No. 1. (3) An abrasion 1/3" x 4" on the back of the left shoulder. (4) A contused wound 1" long x 1/5" deep to the bone in the inner side of left forearm 4" above the left wrist. The lower half of the left forearm and the left hand were swollen. The left forearm was splinted and tightly bandaged. Injury No. 4 was grievous while the rest were simple. On the same day at 7 p. m. the same doctor examined Ali Muhammad and found the following injury vide Exh. P. Y :- "A bullet wound 1/5" in diameter on the inner side of the left hand 3/4" above the junction of the left little finger with the palm. The injury was going towards the inner side. It was 1" deep. Left hand was considerably swollen." The injury was simple and had been caused by firearm. On 3rd August 1972, at 7-20 p. m., the same doctor examined Muhammad Zahoor alias Zahoora and found the following injury on his person vide Ex. P. Z. :- A pellet 1/5" in diameter skin deep on the left join 2 " towards the left and the level of the 1st lumbar spine. The pellet could be palpated beneath the skin 1/5" lateral to the wound. The injury was simple.

5. On 4th August 1972, at 11-15 a. m., Dr. Waseem Akhtar (P. W. 2) examined Sadiq and found a scabbed contused wound 1 " x 1/3" x 1/4" on the outer side of right knee. On removing the scab there was healthy granulation tissues formation and the wound bad started healing. There was no burning or scortching of the area from the wound. On the same day at 11-15 a.m., the same doctor examined Hamid and found two abrasions 1/8" x 1/8" each which was scabbed. These were situated on the front and lower part of the left thigh 1 " apart with contusions in the area 3 " x " around. On removing the scab the abrasion was found to be superficial in nature to be injury was simple.

6. In addition to the above-detailed medical evidence the prosecu tion had relied for its case at the trial on the testimony of Muhammad Anwar (P. W. 6). Alam (P. W. 12), Amir (P. W. 13), Ali Muhammad (P. W. 14), Alia (P. W. 15), Sikandar (P. W. 16). Zahoor (P.W. 17) and Munawar (P. W. 18) for the ocular account of the occurrence while Sarwar (P. W. 9), Pehlwan (P.W. 10) and Ahmad (P.W. 11) had deposed about the recoveries.

7. The appellants and the acquitted accused denying all the above allegations had pleaded false implication but led no evidence in defence.

8. Learned trial Judge accepting the prosecution evidence as true and correct account of the occurrence with its corroboration from the recoveries of the incrimination weapons held the four appellants guilty of the offence under sections 302/307/34, P.P.C. and giving the benefit of doubt to six of their co-accused acquitted them.

9. This finding has been assailed before me as erroneous being based on a belated report with incredible testimony of interested-cum-hostile witnesses and fake recoveries.

10. On going through the record with care including re-examination of the two Patwaris I am persuaded to agree with this contention of their counsel. It was not a case of only a delayed report to the police but the same was found to be a result of prolonged deliberation at the spot as disclosed by the complainant Muhammad Anwar (P. W. 6) himself. Exh. D. E. his supplementary statement was admittedly recorded at the spot but for reasons best known to him Muhammad Anwar had denied this fact although he bad conceded the same before the committing Magistrate that he also made statement before the police which was Exh. D. E. which was detailed one giving the details of all the accused as also the firing and it was recorded at the spot while the statement Exh. P.A. recorded at Morb Pakhi was a brief one. He, however, disowned it when confronted with the same at the trial. He, however, admitted that he did not give the parentage of any accused, so he did not give the same in Exh. P. A. (the initial report) and that the Sub-Inspector on reaching the bungalow at Pakhi had summoned all the accused persons and after ascertaining their parentage from all of them recorded their statements. The Sub-Inspector had, however, denied this assertion of the complainant which suppression would lead to no other conclusion than this that the initial report Ex. P. A. was in fact drawn out at the spot after some preliminary inquiries as is usual in the case where the police officer conveni ently happens to be present somewhere in the vicinity as observed in Muhammad Sadiq's case (P L D 1958 Lab. 601). Moreover the report was delayed by 16 hours and there are so many material omissions in the statements Exh. P. A. and D. E. that neither of the two would inspire confidence so these have to be excluded from consideration leaving the gates open for grave doubts about the participation of the appellants in this occurrence unless after close scrutiny of the entire evidence some confirmatory circumstances are established to connect any of them with this crime. More so when six out of ten accused had already been given the benefit of such doubt about their implication in this case as remarked in Ghulam Muhammad and others v. The State (P L D 1975 S C 588).

11. It is also admitted in the statements of the various witnesses like Sarwar (P. W. 9) and Alam (P. W. 12) that all the prosecution witnesses including those who had attested the recovery memos were closely related to each other including Nadra (deceased) and other injured persons. Amir (P. W. 13) had further impaired their credit as he had conceded enmity between the parties in unequivocal terms in his statement before the Committing Magistrate dated 24th October 1973 which is reproduced below:- "We had old enmity with the accused." Anyhow the statement of each of the alleged eye-witnesses were inconsistent with each other about the time and even the place of occurrence shifting the same from one bund to the other as also of the place of the murder of Nadra (deceased). They varied even about the request made by the appellant and the purpose of their presence on the bund before they opened the attack on them. Some had stated that the fight had taken place near Killa No. 25 of Square No. 3, Bund Pirzada, while the other had taken it to Killa No. 89-of Square No. 12 where the other bund is situate. There were thus different versions about the purpose and reason of the purpose and place (bund) of their own presence at the time of this occurrence. Some of them had admitted that they could not identify the persons who fired at them and even their weapons. It was evening time and of cloudy stormy weather so there was certainly room for doubt about the identity of their assailants.

12. The prosecution had sought to rely on recoveries to support their case against the appellants but some salient features of the statements of the three recovery witnesses seemed to have escaped notice of the learned trial Judge. Pehlwan P. W. had stated that five crime empties found scattered at the spot were taken into possession by the Sub-Inspector and not two empties as urged by the prosecution. These empties were admittedly recovered from the spot on the first day, i.e. Ist of August 1972. This witness had, however, shelved the prosecution by adding that Nek Muhammad and Abdul Majid appellants and some other accused were arrested on the same day wliilc the police had shown their arrest on a different date. Ahmad (P. W. 11) had brought :he cat out of the bag by disclosing that on the same day (date of the first arrival of the Sub-Inspector) the Sub-Inspector summoned the residents of the village Pakhi as also the licence-holders. After naming Nek Muhammad, Abdul Majid appellants and some other accused he had stated that all the remaining accused also appeared before the police on the 2nd August 1972. He then woke up and stated that Muhammad Yaqub and Bashir appellant appeared on 6th and 11th of August, respectively. Then both these witnesses Ahmad and Pehlwan are not only close relations of Nadra (deceased) and other injured witnesses but they are the omnibus witnesses as they were the signatories of all the recoveries of different dates and places. They had varied about the time and place of the arrest of Bashir appellant and had also admitted that some shop keepers were present in their shops at the bus-stand when Bashir was intercepted, one saying while alighting from a bus and the other claiming to have seen him sitting to a shop. The Sub-Inspector, however, had the information (mukhbary) while at the police station from where they came to know that Bashir appellant was present at the bus-stand. The assertion made by one of them that he was arrested while alighting from the bus was incorrect. In view of these vital discrepancies these recoveries were also doubtful but the Firearm Expert Mr. Anwar-ul-Haq Bajwa (P. W. 19) had taken the sting out of these recoveries by bungling in giving the number of the two guns (P. 2 and P. 3) in his report while, the pistol of Bashir appellant was not examined by any expert. There was thus no evidence to corroborate the evidence of the alleged eye-witnesses the veracity of which was even otherwise impaired due to some important contradictions and natural - improbabilities as also due to its rejection in respect of the six out of the ten accused.

13. It appears that in the course of general hue and cries over the entry of the flood water a quarrel had taken place between the resident of the three bastis situate behind this bund including that of Langerials, some of them fired indiscriminately causing the death of Nadra and injuries to the witnesses who could not be identified due to the darkness having set A in this stormy evening and as a result of a roving enquiry next morning the police had drawn out a report implicating the appellants and their co- accused which is also supported to some extent from the statement of some of the alleged eye-witnesses.

14. The prosecution case was thus replete with grave doubts, the benefit of which could not be denied to the four appellants as well I have, therefore, to accept this appeal and setting aside their conviction and sentences direct that they shall be set at liberty forthwith, if not required in any other case. Appeal allowed.