P L D 1988 Lahore 671 (PLP)

IJAZ NISAR, J.‑‑Muhammad Javed (40). his brother Aurangzeb (26) and Muhammad Ilyas (31) sons of Noor Muhammad were tried alongwith Muhammad Akbar, Sher Asif, Faridoon. Muhammad Sheraz, Muhammad Bashir, Muhammad Khan, Ghulam Farid, Abdul Salam, Muhammad Akhtar, Aurangzeb, Chan Sultan and Sher Ahmad for the murder of Muhainmad Ashraf and for murderously assaulting Muslam P.W.13, Muhammad Azram P.W.14, Ghulam Jillani alias Jeela and Muhammad Younis P.W. (not produced). Vide judgment dated 11‑5‑1987, learned Additional Sessions Judge, Rawalpindi convicted Muhammad Javed appellant under section 302/34, P.P.C. and sentenced him to death plus a fine of Rs.10,000 or in default to further undergo R.I. for one year. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation. He was further convicted under section 307/34 P.P.C. on four counts and sentenced to 5 years, R.I. plus a fine of Rs.1,000 or in default to undergo two months, R.I. for making murderous adult on Azram, Ghulam Jillani, Muslam, and Muhammad Younis P.Ws. Half of the fine was ordered to be paid to the injured P.Ws. Aurangzeb and Muhammad Ilyas appellants were convicted under section 302/34 P.P.C. and sentenced to imprisonment for life plus a fine of Rs.10,

000. They were also convicted under section 307/34 P.P.C. for murderously assaulting Azram, Ghulam Jillani, Muslaim and Muhammad Younis P.Ws. and sentenced to 5 years' R.I. each, plus A fine of Rs.1,000 or in default to undergo two months' R.I. All the sentences of imprisonment were ordered to run concurrently with benefit of Section 382‑B Cr.P.C.

2. Muhammad Javed, Aurangzeb and Muhammad Ilyas have filed an appeal challenging their conviction and sentences while Ghulam Rabbani complainant has filed Criminal Revision No.95 of 1987 against the acquittal of Muhammad Akbar, Sher Asif and Sher Ahmad etc. accused.. He has filed another revision Criminal Revision No.96 of 1987 for the enhance cement of sentence of Aurengzeb and Muhammad Ilyas from imprisonment for life to death. Reference made by the learned trial Court for confirmation of death sentence of Muhammad Javed is also before us. All these matters are being disposed of by this judgment.

3. The occurrence in question had taken place on 26‑11‑1985 at 8.30 a.m. near the graveyard in the area of village Sukhoo P.S Wah Cantt. Report Exh.P.A was made by Ghulam Rabbani PW.12 at 11.30 a.m. to S.

1. Muhammad Rustam Khan PW.

15. Formal F.I.R. Exh.PA/1 was recorded on the same day at 12.30 noon by Muhammad Sadiq Moharrir, Head Constable PW.l.

4. The motive for the crime was that Saida etc. had murdered Noor Muhammad father. of the appellants. The latter suspected Muhammad Ashraf deceased as having a hand in the said murder. Furthermore, Muhammad Javed appellant etc. had cut Phullai branches from the common Banna a day before the occurrence. The deceased had objected to it whereupon Muhammad Javed etc. told him that they could take away the cut branches. On the day of occurrence Ghulam Rabbani, Muhammad Ashraf deceased and their brother Dado Khan were present near a well for taking back branches of phullai tree cut by Javed appellant etc. when Javed, Ilyas and Aurangzeb appellants carrying guns came there and challenged Muhammad Ashraf deceased of teaching him a lesson for taking back phullai tree branches and helping Saida etc. in the case pertaining to the murder of their father. Muhammad Ilyas appellant fired a gun shot which instead of hitting. Ashraf deceased hit a wall. Thereafter, Javed appellant fired a. shot hitting right eye of Muhammad Ashraf deceased as' a result of which he fell injured. Aurangzeb appellant then fired a gun shot hitting a wall. On hearing the gun reports Muhammad Younis and Ghulam Jillani P.Ws. (not produced), Muslam PW.13 and Azram PW. 14 rushed to the spot. In the meantime, Farid, Abdul Salam, Bashir, Chan Sultan, Faridoon, Sher Ahmad, Sheraz, Mahmood, Muhammad Akhtar, Muhammad Akbar, Aurangzeb and Sherif started firing at the complainant party. The shot fired by Abdul Salani and Sheraz accused (since acquitted) hit Muslam PW.13 while the shots fired by Bashir and Mahmood accused (since acquitted) hit Azram PW.14. The shots of Ghulam Farid (since acquitted) hit Ghulam Jillani PW (not produced). Muhammad Younis PW (not produced) was injured by the shot fired by Muhammad Akhtar (since acquitted). Akbar accused (since acquitted) fired at Muhammad Younis PW (not produced) which hit a wall. On the alarm of the P.Ws. and womenfolk the accused left the spot while firing shots. Muhammad Ashraf succumbed to the injuries instantaneously. Ghulam Rabbani PW.12 reported the matter to the police. After recording the statement Exh.PA of Ghulam Rabbani PW, S.I. Muhammad Rustam Khan PW.15, proceeded to the spot and prepared the inquest report Exh.PT and injury statement Exh. PU in respect of the deceased. He also prepared the injury statements of Muhammad Muslam, Muhammad Azram, Muhammad Younis and Ghulam Jillani PWs and got them medically examined. He secured blood‑stained earth from Dewari through memo. Exh.PL, extracted lead pellets from inside the Dewari and its northern wall, secured 7 empties from near Phullai trees and 10 empties from near maize stack. The crime empties were made into sealed parcels vide memo. Exh.P.M. Ghulam Rabbani S.1 arrested the accused on 6‑12‑1985. Javed appellant while in custody got recovered gun P.5 from his house which was made, into a sealed parcel through memo. Exh.PG., Sheraz accused* got recovered gun P.6 through memo. Exh. PH. Muhammad Bashir got recovered gun P.15 through memo. Exh. PK. Muhammad Akhtar got recovered gun P.20 vide memo. Exh. PAA. Abdul Salam (since acquitted) got recovered gun P.21‑ vide memo. Exh. PBB. Ghulam Farid got recovered gun P.22 vide memo. Exh.PCC while Mahmood accused led to the recovery of gun P.19 through meno. Exh.P.M. The recovery memos. were attested' by Muhammad Younis PW.10, Bostan Khan PW.7, Ghulam Mustafa PW.9 and S.I. Muhammad Rustam Khan PW.

15. Muhammad Rustam and Banaras the other attesting recovery witnesses were given up. Gun P.5 of Javed appellant matched with one of the crime empties secured from the spot. The report of Forensic Science Laboratory to this effect is Exh. PEE at page 25 of the printed paper book.

5. The accused denied the prosecution allegations and attributed the case to suspicion and enmity. According to them Ghulam Rabbani complainant and his family had many enemies in the Illaqa. They did not call any evidence in defence but produced copies of certain documents to show that they could not join hands with one another because of inter se enmity.

6. The prosecution examined 16 witnesses to prove its case. Ghulam Rabbani PW.12, Muslam PW.13 (injured) and Muhammad Azram PW.1.4 (injured) furnished the ocular account. Ghulam Jillani (injured), .Muhammad Younis P.Ws.(injured) and Dadoo P.Ws were given up as unnecessary. Muhammad Younis PW.10 and S.I. Muhammad Rustam Khan PW.15 deposed about the recoveries of crime empties from the spot while Bostan Khan PW.7, Ghulam Mustafa PW.9 Muhammad Younis PW.10 and SI. Muhammad Rustam Khan PW.15 proved recoveries of guns from the accused.

7. Dr. Abdur Razzaq PW.11 medically examined Ghulam Jillani, Muhammad Younis, Muhammad Azram and Muhammad Muslam P.,Vs. One fire‑arm injury each was found on the, person of Ghulam Jillani and Muhammad Younis P.Ws. (not produced). Ghulam Jillani had received injury on the right side of back of chest (lower part) while Muhammad Younis had received injury on the right side upper part of the chest just behind the right taxilla. Two simple fire‑arm injuries were found on the person of Muhammad Azram P.W.14 on the left thigh and left. fire‑arm while three simple fire‑arm injuries were found on the person of Muhammad Muslam P.W.13. For details, of the injuries see page.16 to 18 of the printed paper book. Dr. Nasir Mahmood P.W.17 conducted post‑mortem examination on the dead body of Muhammad Ashraf deceased and found the following injuries thereon: (1) A laceration of the upper eye‑lid only right eye 1 cm x 0.5 c.m. with damage to eye globe and contusion of the skin of the right eye. No burning or blackening was present round the wound. (2) A lacerated wound on the chin 1.5 cm x .3 c.m. Brain was damaged. A metallic foreign body was recovered from there. The deceased died of shock and haemorrhage due to injury No.1 which was caused by a fire‑arm. Injury No.2 was caused by blunt weapon. The time between injury and death was immediate and that between death and post‑mortem about 6 to 10 hours.

8. Partly relying on the ocular testimony, the motive and the recovery of gun P.5 at the instance of Muhammad Javed appellant and its matching with the crime empty recovered from the spot the learned trial Court convicted and sentenced the appellants as stated above. He, however, acquitted the other accused by giving them the benefit of doubt.

9. Criticising the judgment, learned defence counsel has argued that the eye‑witnesses having been disbelieved in respect of majority of the accused could not be relied upon against the appellants without independent material corroboration. It is further stated that lot of material improvements were made by the prosecution, in that, the motive of cutting Phullai trees and branches was dropped and instead the deceased being suspected of having a hand in the murder of the father of the appellants was pressed. It is next argued that the accused being inimical to one another could not join hands. The matching of gun of Javed appellant with the crime empty recovered from the spot is assailed on the ground that parcels of both were sent together to the Laboratory after a considerable delay and remained with the police for several days. The capability of the eye‑witnesses to specify the shots fired by each of the accused is also challenged on the ground of intervening distance *and the accused hiding themselves behind cluster of trees.

10. Initially two motives were set up for the commission of the crime. (1) cutting of Phullai branches by the appellants and (2 Muhammad Ashraf deceased helping Saida etc. of murder of father of the appellants but at the trial the motive pertaining to the cutting of Phullai trees was given tip and only the deceased being suspected of having abetted and conspired in the murder of Noor Muhammad father of the appellants was pressed. Ghulam Rabbani PW.12 stated at page 43 of the paper book that matter of cutting of Phullai trees ,tood compromised between Javed appellant and Muhammad Ashraf deceased and the only motive was that the accused suspected Muhammad Ashraf deceased of having abetted /conspired the murder of Noor Muhammad. The motive now pressed into service is also not proved because Ghulam Rabbani P.W admitted that the accused did not express any doubt or suspicion about the, involvement of Muhammad Ashraf deceased in the murder of Noor Muhammad. He further admitted that none of his relatives was arrayed as accused nor was any body summoned or joined in the investigation of the said murder case. Saida etc. were challaned for the murder of Noor Muhammad. If Javed appellant etc. had suspected Muhammad Ashraf deceased as having a hand in the said murder they could not have left him out but also involved him alongwith Saida etc. but as already stated above neither Muhammad Ashraf deceased nor any of his relatives was arrayed, summoned or joined in, the investigation of the murder case of Noor Muhammad. The eye‑witnesses examined by the prosecution were closely related to the deceased. Ghulam Rabbani PW.12 is a brother of the deceased, Muslam PW.13 is nephew of the deceased while Muhammad Azram PW.14 is son of the deceased. Ghulam Jillani and Muhammad Younis injured P.Ws were given up as unnecessary. Dadoo given up P.W. is also a brother of the deceased. The learned trial Court had come to the conclusion that independent corroboration. of their testimony was. required because admittedly they had exaggerated the number of the accused persons. The Court further held in para. 54 of the judgment that on the basis of documentary proof it was proved that Akbar and Akhtar accused were inimically disposed towards Javed appellant etc. because of the registration ' of criminal cases against Javed, etc. at the instance of Ak.bar. The trial Court also entertained doubt about the conduct of the P.Ws. who remained present at the spot and not taking shelter when they were being fired at. In para. 58 of the judgment, the trial Court. seriously doubted the capability of the PWs. to specify injuries received by each of the injured P.Ws at the hands of a particular accused. The involvement of the acquitted accused was considered doubtful by the learned trial Court. Para. 63 of the judgment which is to the following effect may be reproduced: 'In view of the above reasoning, I am confident in arriving at an irresistible conclusion that the P.Ws did exaggerate the number of accused persons and they involved even these 12 accused in the occurrence although in view of the above their involvement seems to be much doubtful, nevertheless this fact by itself is riot sufficient to discard altogether the testimony of these P.Ws. as the theory of indivisibility of testimony of the P.Ws is not of universal application as the Court has to sift grain from the chaff.,, The trial Court further observed that in view of the statement of the doctor all the injuries of the P.Ws and 'the deceased appeared to be the result of one fire shot as the pellets recovered from the deceased and the, injured persons were of the one and the same size. The matching of crime empty recovored from the spot with gun P.5 of‑Javed appellant also appears to be highly doubtful. In this context a reference may be made to the statement of Muhammad Sadiq PW I wherein he admitted that parcel of gun and of empty remained in his custody for 5 days. The crime empty was recover from the spot on 26‑11‑1985 but it was sent to the Laboratory on 11‑12‑1985 after the recovery of gun P.5 from Javed appellant. Reasonable explanation has been advanced by the prosecution witnesses as to why both were not sent immediately to the Laboratory and the reason of their having been kept together in the police station for several days. It is not understandable why only gun P.5 had been sent to the Laboratory for comparison with the crime empties when other guns had also been recovered at the instance of other accused persons and were available with the police. For this reason, this piece of evidence appears to be a fabrication. The eye‑witnesses examine by the prosecution have beer, disbelieved it, respect of their own injuries which they had attributed to the acquitted accused. According to them they had witnessed the accused firing from behind the cluster of trees. It appears to be improbable that they would have been in a position to specify injuries to accused persons. As already stated above, number of accused has been exaggerated by the prosecution and it has failed to prove motive. The medical evidence also does not support the eye‑witnesses. In these circumstances the criterion applied by the learned trial Court for recording conviction of Muhammad Javed appellant and his brothers was not legally justified. Having considered all the pros and cons of the case we are oft the view that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. Accordingly, we accept their appeal, set aside their conviction and sentences and acquit them of the charges. They shall be released forthwith if not required to be detained in any other case. The death sentence of Muhammad Javed appellant is NOT confirmed. As no body appeared on behalf of Ghularn Rabbani complainant to press the revisions filed by him they are, therefore, dismissed. M.A.K./M-851/L Appeal accepted.