1989 PLP 42 (MLD)

(1) A wound of entry of gunshot 4 c.m x 3 c.m. x cavity deep on the upper part of the right buttock. The margins were blackish and inverted. (2) A wound of exit of one pellet c.m. x c.m. into left iliac fossa. The margins were averted. (3) An abrasion 1‑ c.m. x 1 c.m. on the lower part of the right knee joint. Death in the opinion of the Doctor was due to shock and haemorrhage caused by injury No.l which had damaged the right iliac bone, small and large intestines, urinary bladder and blood vessels bf the lower part of the abdomen and it was sufficient to cause death in the ordinary course of nature. Injury No. 1 was a gunshot injury; this was the entry wound and injury No. 2 was the exit wound. Time between the injuries and death was about 1/2 hour and between death and post‑mortem examination 13 to 14 hours.

9. The Doctor found the following injuries on the dead body of Muhammad Saeed Constable:‑‑‑ (1) Four wounds of entry of pellets from gunshot 1 c.m. x 1 c.m. each spreading over an area of 5 c.m. x 4 c.m. around the right nipple. (2) Wound of entry of gun shot 4 c.m. x 4 c.m. on the left side of chest 5 c.m. below the centre of left axilla. There was slight blackening and the margins were inverted. (3) A gunshot wound of entry 3‑1/2 c.m. x 3 c.m. on the back and lower part of the left upper arm. The margins were black and inverted. There were 3 wounds of exit of pellets 2 c.m. x 1 c.m. each on the back and upper part of left fore‑arm. The left humerus bone was fractured and fracture dislocation of the left elbow joint. (4) One abrasion 1 c.m. x 1 c.m. on the bridge of nose. (5) One abrasion 1 c.m. x 1 c.m on the forehead in between the two eye brows. (6) Lacerated wound 4 c.m. x 1 c.m. bone deep on the right side of the head 9 c.m. above the right ear. Death in the opinion of the Doctor was due to shock and haemorrhage resulting from injuries No.l, 2 and 3 which had damaged the right lung, left lung, the heart and the pleurae and had fractured the left humerus. They were sufficient in the ordinary course of nature to cause death. While, injuries No.l, 2 and 3 were caused by gunshot, injuries No.4, 5 and 6 were caused by blunt weapon. Time between injuries and death was immediate and between death and post‑mortem examination 15 to 16 hours.

10. The Doctor also examined Yousaf Ali S.I. and Ramzan oh 31‑10‑1987. Yousaf Ali S.I. was found to have the following injuries:‑ (1) Lacerated wound 1‑ c.m. x c.m. skin deep on the right side of back of the head 5 c.m. above and behind the right ear. (2) Multiple abrasion spreading over an area of 12 c.m. x 6 c.m. on the back of the right shoulder and upper part of the right upper arm. (3) A contusion 8 c.m. x 3 c.m. on the left half of the upper part of the abdomen.

11. Muhammad Ramzan Constable had the following injuries: (1) A painful swelling 8 c.m. x 3 c.m. on the upper part of the left side of the back. (2) A contusion 7 c.m. x 3 c.m. on the outer side of the left calf. (3) The patient complained of pains in the left shoulder joint.

12. The injuries of Yousaf Ali and Ramzan were simple in nature caused by blunt weapon.

13. The case was investigated by Muhammad Zaman S.I., S.H.O. P.S. Ahmad Pur Sial, District Jhang (P.W.14). He found five empty cartridges at the place of occurrence on 1‑11‑1987 and made them into a parcel vide memo. Exh. P.N; according to him, he arrested the appellant and Mst. Kausar Perveen on 4‑12‑1987. While Mst. Kausar Perveen produced Sota P.21 which was taken into possession vide memo. Exh. P.I., Manzoor Hussain, appellant led to his residential house on 14‑12‑1987 and produced carbine P.22. It was taken into possession vide memo Exh. P.J.

14. The empties and the carbine P.22 recovered from the appellant were sent to the Fire‑Arm Expert. His report Exh. P.D.D. is to the effect that none of) the empties had been fired from the appellant's carbine.

15. In support of its case, the prosecution called 14 witnesses including Doctor Ahmad Ali (P.W.5) and Muhammad Zaman S.I. (P.W.14). Of the remaining prosecution witnesses, Jamshed Alam D.S.P. (P.W.11), Yousaf Ali kP.W.12) and Muhammad Ramzan Constable (P.W.13) gave the eye‑witness account of the incident and it was upon their testimony that the guilt or innocence of the appellant primarily rested. The evidence of the remaining P.Ws. was entirely of a formal character and nothing turned upon it.

16. In his statement under Section 342 of the Cr.P.C., the appellant denied his participation in the crime; he also denied that he and Muhammad Ramzan alias Mushtaq accused had committed robbery, within the limits of P.S. Chaubara District Leiah, at 8.00 p.m. on 29‑10‑1987. According to him, he had been involved by the Qureshis of Mauza Pir Abdul Rehman who were inimical towards me. All the P.Ws. are members of the police force and that is why they have deposed against me".

17. He also gave evidence on oath as he was required to do by Section 340, subsection (2) of the Cr.P.C., denying his participation in the crime. According to him, he had not absconded. He read the newspaper on 2.11‑1987 containing the news of this incident and appeared before the police on 3‑11‑1987. Nothing had been recovered from him.

18. The learned trial Judge found that "there was no occasion for the womenfolk including Kausar accused to take part in the occurrence as alleged by the prosecution"; in his opinion, therefore, the prosecution had failed to prove its case against Mst. Kausar Perveen beyond a reasonable doubt. As regards the appellant, the learned trial Judge placed "explicit reliance" on the evidence of Jamshed Alam D.S.P., Yousaf Ali S.I. and Ramzan P.W.s; he found no reason to disbelieve them, particularly the injured P.W.s Muhammad Ramzan Constable and Yousaf Ali S.I. The recovery of carbine P.22 from Manzoor Hussain, appellant, and his abscondence till 4‑12‑1987 were called in aid by the learned trial Judge as corroborative evidence.

19. It was in the evidence of Jamshed Alam D.S.P. that the place of occurrence was about 60 or 70 miles from Leiah. The police party headed by Jamshed Alam D.S.P. belonged entirely to Leiah, whereas the place of occurrence was situated within the limits of P.S. Ahmad Pur Sial, District Jhang. The dacoity reported by Ghulam Muhammad of T.DA. Colony Leiah at P.S. Chaubara vide F.I.R. No.131 dated 30‑10‑1987 (Exh. P.Z.) occurred at 8.00 p.m. on 29‑10‑1987. Five persons were mentioned as culprits in that F.I.R., they included "Manzoor Hussain and Ramzan alias Mushtaq", that being the only description of the appellant, Manzoor Hussain, and the accused person Ramzan alias Mushtaq in that F.I.R. This description, it is obvious, was too meagre to lead to the arrest of the appellant and his co‑accused Muhammad Ramzan alias Mushtaq. Nothing was brought on the record to connect the appellant with the dacoity case. Jamshed Alam D.S.P., Yousaf Ali S.I. and Ram7an P.Ws were content to say that an informant had informed the police party that the culprits of the dacoity case were the appellant and Ramzan alias Mushtaq and that they were present in their houses m Basti Khalifa in village Pir Abdul Rehman at the p time of occurrence. The informant was not called as a P.W.; nor was any other evidence led to satisfy the Court that the persons concerned in the dacoity were the appellant and Ramzan alias Mushtaq, residents of Basti Khalifa in village Pir Abdul Rehman. For reasons not apparent on the record, Jamshed Alain D.S.P. did not even take the local police into confidence. There is no question that ordinarily they should not only have informed the local police of what they wanted to do within the limits of P.S. Ahmad Pur Sial but should also have associated them with the raid.

20. The Police party consisted of more than 12 Policemen and Abdul Ghaffar, a Qaumi Razakar. At least four of them were armed; Muhammad Saeed, Sultan Ahmad and Muhammad Sharif Constables had rifles and Abdul Sattar Constable had his licensed revolver. According to the prosecution, the police party was divided into three groups, one headed by Jamshed Alam D.S.P. the other headed by Rabnawaz S.I. and the third headed by Yousaf Ali S.I. All the three deceased persons, namely, Muhammad Saeed, Abdul Sattar and Abdul Ghaffar and both the injured PWs, namely, Ramzan Constable and Yousaf Alt S.I., it is significant to note, were members of the same group and two of them, namely, Abdul Sattar and Muhammad Saeed Constables carried rifles. According to the F.I.R., the appellant and his co‑accused, of whom, the appellant and Muhammad Ramzan alias Mushtaq carried fire‑arms and the remaining carried Sotas, attacked the police party headed by Yousaf Ali S.I. and were able to kill three and seriously injure two of them. The prosecution would have us believe that in the presence of so many police officials, four of them being armed with rifles and revolver, the appellant and Muhammad Ramzan alias Mushtaq, effectively used their fire‑arms and their co‑accused armed with Sotas were able to deal blows to them at will, as if all the policemen had been mesmerized or were men possessed. Only one of them, namely, Muhammad Saeed Constable, it was said, had tried to fire his rifle but that too missed. Then it was said that the culprits had, taking advantage of the darkness of the night and the jungle surrounding the area, succeeded in running away and that Yousaf Ali S.I., Ramzan and Rabnawaz S.I. would be able to identify them if they were brought before them. A reading of the F.I.R. gives one the impression that Jamshed Alam D.S.P. was at some distance when the firing started and this accounts for there being no mention of his name in the list of persons who it was said could identify the culprits. At the trial, it was said that when the firing‑started, the search light was switched on. This was a clear improvement upon the case in the F.I.R. where no search light was mentioned. Otherwise too one has to be too credulous to believe the prosecution story. It is hard to believe that so many police officials, were present, and four of them were armed with rifles and revolver and yet not a single culprit was apprehended at the spot. Not only that, not a single shot was fired from the police side and consequently nobody of the accused party was injured. At least three of the accused party were women. The prosecution would have believe that a strong police contingent headed by a D.S.P. deputed for the apprehension of the culprits in the dacoity case had remained standing as passive spectators when the appellant and his co‑accused, including three women were killing their colleague police officials and injuring others. All these circumstances, in our opinion, strongly militate against the truth of the prosecution story; they show and show clearly that the incident had not occurred in the manner stated by the PW s, for, had it so occurred, someone of the accused party must have been injured or at least apprehended at the spot. Jamshed Alam. Yousaf Ali and Ramzan PWs admitted that they had never been posted in District Jhang. As observed above, the description given in F.I.R. No.131 (Exh. PZ) by itself contained too scanty an information about the culprits in the dacoity case and by itself that description would not have led the police party to the houses of the appellant and his co‑accused. It also appears clearly that the information about the identity of the appellant and his co‑accused as also as to their presence in Basti Khahfa was provided to the police party by an unknown informant. Basti Khalifa was in the river‑bed and it was surrounded by bushes. It was also in evidence that the house from which the culprits emerged and attacked the police party was not the house of the appellant, Manzoor Hussain; it was the house of another Manzoor. If there was light enough at the spot to enable the police party to identify the culprits, then they must have recognized Mst. Kausar Parveen accused as fully as any other accused person. Mst. Kausar Parveen accused was put to identification in the jail but Jamshed Alam D.S.P. had failed to identify her. For the same reasons as had made it necessary for the prosecution to hold an identification parade for the identification of Mst. Kausar Parveen accused, it was necessary to put the witnesses also to the same test as regards the appellant but this was not done and this must give rise to the inference that had this been done, the eye‑witnesses would not have identified him. Yousaf Ali S.I. and Muhammad Ramzan Constable stated in their evidence that they had known the appellant previously but they did not give reasons in support of their claim. In their statements before the police, neither of them had made that claim and their assertion at the trial that the appellant was before the incident known to them must, therefore, be regarded as an afterthought. In short, this was a case m which the question of the identity of the appellant clearly arose and it lay upon the prosecution to lead evidence to establish the appellant's identity beyond a reasonable doubt. As observed above in F.I.R. No.131, name of the appellant's father his place of residence etc. were not mentioned. It is also interesting to note that in the F.I.R. of this incident it was at the fag‑end that the full description of the appellant and his co‑accused was mentioned. It is obvious that the appellant's father's name was not known to Jamshed Alam D.S.P. and he, therefore, owed an explanation as to who had supplied the appellant's father's name to him.

21. All these circumstances, in our view, combine to render the prosecution case against the appellant extremely doubtful. We would, therefore, accept the appeal, set aside the conviction and sentence of the appellant on all the charges and acquit him. He shall be set at liberty forthwith unless required in any other case. H.B.T./M‑1128/L Appeal accepted.