1989 PLP 2817 (MLD)

Dr. Muhammad Altaf Hussain, who had performed autopsy on the dead body at 9 a.m. on 17-3-1984, appeared as P.W.2. He had noted following injury on the body of the deceased:- "A lacerated wound of fire-arm entry, 3/4 c.m, x 3/4 c.m. on the right upper lid, 1 c.m. from the route of nose and 1/2 c.m. below the right eyebrow with contused swelling of right eye-ball and lids. On dissection a pellet was found having passed through the right upper part of upper lid, injuring the upper part of the eye-ball, passing through the orbital bone by fracturing it into the brain. Right hemisphere of brain was injured and the pellet was struck in the right parietal bone. A pellet was removed from the brain. The right side of the brain was full of blood. All the other organs were healthy. Stomach was empty; urniary bladder was full of urine. Large intestines contained faecal matter. Death was opined to have occurred due to shock and haemorrhage resulting from the injury, which was opined to be sufficient to cause death in the ordinary course of nature. Probable duration between injury and death was opined to be within six hours while time that elapsed between death and post- mortem was opined to be about 12 hours.

7. The ocular account was deposed to by Bati (P.W.6), Fateh Muhammad (P.W.8) and Aftab Ahmad (P.W.9). Bati repeated the facts given by him in the F.I.R. He, however, made some significant improvements also. In that, he stated that he alongwith his co- accused were acquitted in the murder case of Lala as a result of compromise between the parties. He gave out that one of the terms of the compromise was that he would marry his daughter to Mukhtar appellant. He stated that later he refused to marry his daughter to Mukhtar, as he alongwith Atta Muhammad son of Mohabatti (accused, who died before trial) had committed theft of his bullock for which he reported the matter and that they were challaned and convicted. He added that Rukhsati of his daughter whose Nikah had earlier been performed with Mukhtar did not take place on account of his refusal. In fact, he denied that there was any such marriage. The other noticeable improvement he made at the trial was that while stating about the two groups formed by the accused for launching attack, he also specified the names of the accused m each group. He also added that they had taken refuge in a Morcha constructed by him on their roof. During cross-examination, he stated that the compromise which had taken place between them and the heirs of Lala (deceased of the earlier murder case) had remained effective till two years before the present occurrence when his bullock was stolen by Mukhtar appellant and Atta Muhammad aforesaid. He added that prior to that Hayat, a brother of Lala, had given the hand of his daughter Razia to his son Nazar. He denied the suggestion that he had developed enmity with one Abdul Pathan because of party faction and that Abdul Pathan had come in a marriage party relating to the marriage of sister of Soni accused and that he had exchanged abuses with him, whereafter Abdul had resorted to firing which struck his son, as a result of which he died. He admitted of having entered into an agreement for referring the matter of plea of innocence of Mirza, Sahiba, Mohabatti (since dead), Shahbaz, Muhammad Niwaz and Fatta to respectables for Nian, and that the said persons were declared innocent on Atta Muhammad having given Nian of the innocence by swearing on Holy Oura'an. In answer to another question, he stated that one group was firing at them from a distance of 51 Karams while the other was firing from a distance of 70 Karams. He also conceded that there were Shisham trees between them and assailants of one group and his Kino garden between him and the other group of assailants, He claimed that all the witnesses had seen the occurrence by coming over to the roof. He stated that hundreds of people had seen the occurrence, but only three persons had requested the accused to stop firing. He explained that after reaching the hospital, he had met the doctor and told him about the injured being his son and that he had gone to lodge the report after obtaining M.L.R. He denied the suggestion that the F.I.R. was lodged on the following day at the spot after preliminary inquiries. He also denied the suggestion that his son was taken to the hospital by the police and was got examined by them. Fateh Muhammad (P.W.8), while corroborating the statement made by Bati (P.W.6), with regard to the occurrence, stated that Mukhtar and Sadra were armed with rifles while others were armed with guns. According to him, he was present in his land near the Dera of Bati and after hearing Lalkara of the accused while being there, had seen, them firing towards the Dera of Bati and that he had run to the Dera of Bati alongwith Mumtaz P.W. thereafter and had gone to the roof, wherefrom he witnessed the occurrence. He also claimed to have witnessed the recovery of gun and three empty cartridges at the instance Manzur appellant, .7 mm rifle with an empty cartridge at the instance of Mukhtar appellant, gun and empty cartridge at the instance of Mansha, gun and three live cartridges at the instance of Soni, and rifle and ten live cartridges at the instance of Sadra, and of having attested the relevant memos. He claimed that he was equally related to the accused party. In that he stated that his sister Mst. Sahiba was married to Lala deceased. He, however, admitted that he was one of the accused challaned for the murder of aforesaid Lala. He gave the age of Mirza acquitted accused to be 75/80 years and stated that Sahiba was elder to him. He, however, denied that Sahiba was not in a position to walk without support. He denied the suggestion that police had declared Mirza, Sahiba, Mohabatti, Shahbaz, Muhammad Niwaz and Fatta as innocent, but admitted that the police had released them and had not challaned them. He denied the suggestion that a dispute had occurred with Abdul Pathan who had come to attend a marriage in their village and others on tins side with Bati, which had resulted into firing and that the deceased had died in that occurrence. Like Bati, he also admitted that there were Shisham trees between the roof of Bati and one group of assailants and there was a Kino garden intervening between the other group -of assailants and the roof of the Dera of Bati. He admitted that Bati was married to his sister and so the deceased was his sister's son. Aftab Ahmad (P.W.9) while corroborating the statement made by Bati stated that he had heard the reports of gunfires while coming to the Dera of Fateh Muhammad and had seen Fateh Muhammad P.W. and his son Mumtaz running towards the Dera. He stated that he had followed them and had gone up the roof of the Dera and witnessed the occurrence from there. According to him, all the accused were armed with guns. He stated that accused had stopped firing on the entreaties of other persons of the surrounding areas who had also reached the spot. During cross-examination, he stated that he was residing at a distance of 1-1/2 miles from the place of occurrence and that Ishrat P.W. was his brother. He denied that he had relations with Fateh Muhammad P.W. or that he had made statement to the police that he had long-standing relations with Fateh Muhammad. He was, however, found to have stated so in his statement (Exh.D.C.) under section 161, Cr.P.C. He was not found to have stated that he had gone to the roof of the Kotha of Bati. He was also not found to have stated that Sahiba, Soni and Mirza had exhorted Manzur and Mukhtar appellants that their firing had not hit anyone till then and they are firing inaccurately. He admitted that he could not have seen the parts played by each of the accused if he had not gone up to the roof. He denied the suggestion that the positions of the accused were not visible from the Kotha, on account of intervening of trees and Kino garden. He admitted that he had appeared before the police on the morning falling the day of occurrence. He denied the suggestion that he had made a false statement.

8. Abdul Karim, S.I. (P.W.10) stated. about having registered the case and of having recorded the statements of the eye-witnesses. During cross examination, he stated that he had reached the spot at 10-30 p.m. while the Inspector had reached there at 11-55 p.m. Muhammad Waris Inspector/S.H.O. while giving the details of investigations, stated that during spot inspection he had collected blood-stained earth from the Kotha, a piece of led bullet, an empty cartridge of .12 bore from Killa No. 17 of Square No. 45 and 11 cardboard of cartridges. He also stated about the arrest of Manzur, Mukhtar, Sadra, Soni and Mansha on 19-3-1984 and the weapons recovered from them on 20-3-1984. He stated that he had deferred the arrest of the remaining accused under the orders of D.S.P. During cross examination, he stated that while investigating at the spot, he had come to know that Bati had constructed Morcha on the roofs of his two rooms, as he had developed enmity with the persons residing in the vicinity. He stated that the accused whose arrest was deferred were later declared innocent as not only many persons had appeared in their defence but the matter was resolved on oath of innocence also which was taken as a result of the agreement between both the parties. He stated that wedding of sister of Shahbaz and Soni accused had taken place on the day of occurrence, which was attended to by many persons. The statement of the Inspector/S.H.O. about the collection of blood stained earth, piece of led bullet empty cartridges from the fields and card board of the cartridges has been corroborated by Muhammad Niwaz (P.W.5).

9. The statements of the remaining witnesses are more or less of a formal nature. Reports (Exhs. P.B. and PX) from the offices of the Chemical Examiner and that of the Serologist were also tendered in evidence. Exh.P.Y., report from the office of the Forensic Science Laboratory was also tendered in evidence. The remaining P.Ws. were given- up as unnecessary.

10. The appellants as well as acquitted accused during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. They took up the plea that they have been involved falsely in the case. The inter se relationship was admitted by all of them.

11. Learned counsel for the appellants after taking us through the evidence criticised the impugned judgment and contended that the ocular account in this case has been furnished by related and interested witnesses and the same does not inspire confidence, particularly, for the reasons that they had spread a wide net and major parts of their accusations stand disbelieved. Learned counsel contended that none of the eye-witnesses appear to have witnessed the occurrence. He particularly laid stress on the point that it would be highly unsafe to maintain conviction on the testimonies of such. witnesses, without corroboration, which is not forthcoming in this case. The motive alleged by the prosecution at the time of lodging F.I.R., according to. him, was a far-fetched one. In support of his contentions learned counsel cited Rehmat etc. v. State P L D 1959 SC 109, Misal Khan v. The State 1984 S C M R 485 and Ghulam Sikander etc. v. Mamaraz Khan etc. P L D 1985 SC 11.

12. Learned counsel for the State/complainant defended the judgment of the trial Court. Learned counsel for the complainant laid stress on the point that in view of the inter se relationship of the parties, the complainant would not have involved innocent persons. According to him the ocular account furnished by P.Ws. 6 and 8 stands sufficiently corroborated by the testimony of Aftab Ahmad ,'P.W.9) who by all means was an independent witness. Learned counsel argued that the circumstances clearly connect the appellants with the crime. Lastly, it was argued by him that the lesser penalty of imprisonment for life awarded to Manzur was based on incorrect assumptions and so the same should be enhanced to normal penalty of death.

13. Bati (P.W.6) is father of the deceased. Fateh Muhammad (P.W.8) is maternal-uncle of the deceased, being brother of his mother. Aftab Ahmad (P.W.9) although is not related to the complainant or the deceased, but he was found to have stated in his statement under section 161, Cr.P.C. that he had old intimate relations with Fateh Muhammad son of Karam Ali (P.W.8). Apart from that he belong to a different village and so at the best he is a chance witness.

14. The complainant has made quite significant improvements while making statement at the trial over the statement he made while lodging F.I.R. In fact, he changed the whole context of motive mentioned for the occurrence. He also made improvements in the manner the accused named in the F.I.R. had committed the occurrence. In the F.I.R. he did not give any impression that he was acquitted in the case of murder of Lela as a result of a compromise or chat any conditions were attached to that. If he had not made the improvement in that regard at the trial, the motive given by him in the F.I.R. would have been normally considered as a far-fetched one, because nothing appear to have happened since after his acquittal 13/14 years prior to this occurrence. The improvement, therefore, made at the trial by him can easily be taken to mean that he wanted to strengthen his case. It is for this reason that we consider the improvement significant one. Even in the improved form of the statement it is not only the prosecution which can claim the benefit, the defence has, also a case, to say that the appellants had fallen to the hated list of the complainant because of the theft of his bullock committed by Mukhtar and it was on that account that he made both the brothers as special targets by assigning significant roles, while the fact of the matter, is, that two sons of Lala, the deceased of the earlier case, were also taking part in the occurrence armed with guns, and if the idea was to avenge the murder of Lala, then his sons would have played a major role as compared to others.

15. The allegations levelled in the F.I.R. and the statements made by P.Ws. 8 and 9 during investigation were not accepted against Mirza, Muhammad Niwaz, Sahiba, Shahbaz, Fat eh Muhammad and Mohabatti (the accused who died before F trial). Although their names were placed in column No. 2 of the challan, but they, in fact, were not even arrested in spite of their appearance before the Investigating Officers. In fact, the plea of their innocence was decreed by a person in the mosque on the Holy Qura'n, nominated by the complainant, apart from the evidence that they led in support of their innocence. They were tried, on being summoned by the trial Court, vide order, dated 11-11-1984 (this order only exists in Urdu proceedings) but they were acquitted by the trial Court alongwith three others also. The testimonies of the complainant and witnesses to that extent I stands disbelieved.

16. The Inspector,-who had investigated the case disclosed during cross examination that the complainant had developed enmity with certain persons of the Ilaqa and on account of that he had constructed two Morchas at the roofs of his house for defence purposes. This disclosure lends support to the argument that the complainant and his family unfortunately was entangled in vicious circle of enmity.

17. There is no evidence which can lend corroboration to the testimonies of the eye-witnesses. The empties recovered from the place wherefrom they are alleged to have launched attack did not tally with any of the guns recovered from D the accused. The evidence of recoveries of weapons from the appellants is, therefore, of no consequence. Even otherwise it is worth noting that although it was not alleged in the F.I.R. that anybody was armed with a rifle and no empty of rifle was recovered from the place of occurrence, still according to the prosecution evidence two accused including Mukhtar appellant had allegedly got recovered rifles. The testimonies of the three eye-witnesses have to be judged in the light of these facts.

18. All the three eye-witnesses as well as the Investigating Officer admitted the proposition that no witness could have seen as to who was firing at the deceased except the ones standing on the roof where the deceased had suffered the fatal injury, In that, it is also conceded by them that there were tall Shisham trees intervening between one group of the assailants and the roof where the deceased was present and Kino garden intervened between the place where the other group had taken positions and the roof where the deceased was present. The distances of the positions of the two groups from the roof were also stated to be 65 Karams and 71 Karams. Apart from the above hindrances, even the distances given otherwise would have made it difficult for the witnesses to pin point the shots fired by any of the accused. The claim made by P.Ws. 8 and 9 that they had moved to the Dera of the complainant and had gone up the roof also appears to be doubtful. Both of them during cross-examination succumbed to the proposition that they had moved to the Dera of the complainant after the firing had started. Had that been so, it would have been definitely quite indiscreet and unsafe for them to have ventured to walk through and beneath the firing, particularly so when each one of them knew that they will be of no use to the complainant party while being on the roof. It is not their case that they had gone there armed with guns to fire in defence of the complainant. Their case is that they went up the roof and witnessed the occurrence. If they had to intervene by beseaching the accused, they could have done that in a more effective manner by standing where they were. The conduct of Aftab P.W. about whom it was argued that he is an independent witness in this regard is more dubious. He tried to give impression at the trial that he was not at all interested in the complainant still he ventured to say that he moved to the roof while the complainant party was being fired at by eleven persons. Why after all should he had taken that risk when particularly he knew that he will be of little use to them while being up the root.

19. Apart from other criticism directed against the reliability of Bati (P.W.6), one significant thing which we have noted in the record is that his claim of having gone with his deceased son to the hospital and of having moved therefrom to the police station after obtaining M.L.R. and producing the same before the S.I. I stands falsified. In the M.L.R. (Exh.PA.) of the deceased prepared by Dr. Abdul Jabbar (P.W.1), in column `name of relative or friend', the words, police case' are I written, and against column, `No. and date of police docket', 16-3-1984 is written and against column `No. and name of constable' Abdul Aziz Constable 599 is written. The signatures of Abdul Aziz Constable No. 599 also appear beneath the words (CORBON COPY WASOOL PAYEE). The entries of the columns of Exh.PA., not only gives a lie to the7claim made by the complainant that he had taken his deceased son to the hospital, had got him examined and had thereafter gone to the police station to lodge the F.I.,R., armed with M.L.R., but also lends full support to the argument that the police was seized of the case sometimes prior to the registration of F.I.R. (Exh.P.J.). This fact not only makes the claim of the complainant doubtful of having taken his injured son to the hospital but also makes his claim of being present in his house at the time of occurrence doubtful too. Further more, it lands complete support to the suggestions made at the trial and argument advanced before us that the F.I.R. was not lodged in the manner and at the time the prosecution wants others to believe, but was lodged after preliminary investigation and consultations.

20. The testimonies of all the three eye-witnesses for the aforesaid reasons do not inspire confidence. In the circumstances, doubts have arisen in our mind about the prosecution having succeeded to prove its case to maintain the conviction of the appellants on the capital charge. The appeal filed by them is, therefore, allowed by way of grant of benefit of doubt, and they are acquitted.

21. Since Manzur has been acquitted, the question of enhancement of his sentence by way of exercise of revisional jurisdiction does not arise. The revision petition consequently stands dismissed. M.Y.H./M-1390/L Appeal allowed.