P L D 1968 Lahore 869 (PLP)

BASHIRUDDIN AHMAD, J.‑‑

Muhammad Shall (41), and Nazir Ahmad alias Kala (26) were tried for the murder of Ghulam Muhammad and attempted murder of Muhammad Sadiq alias Shada on July 3, 1965, at about sunset in the area of Chak No. 112/E. B., by the learned Additional Sessions Judge, Sahiwal, who convicted and sentenced Muhammad Shafi to death and Nazir Ahmad alias Kala to transportation for life under section 302/34, P. P. C. and seven years' rigorous imprison ment each plus a fine of Rs. 20u each under sections 307/34, P. P. C. In default of the payment of fine each one of them was ordered to suffer simple imprisonment for one month. The sentence of imprisonment in the case of Muhammad Shafi was ordered to take effect in the event of the death sentence not being confirmed by this Court. The convicted persons appealed and the learned Additional Sessions Judge referred the case under section 374, Cr. P. C. to this Court for confirmation of the death sentence imposed on Muhammad Shafi. We propose to dispose of the appeal and the reference by a single judgment.

2. The prosecution story, briefly narrated, is that the deceased and his brother Hayat were allotted 24 acres of land in village Bindaur, Rahimyar Khan District where they settled after Independence. Sometime before the occurrence, under considera tion, they agreed to exchange the land with Muhammad Shafi who promised to transfer ten acres of land to them situated in Chak No. 112/E. B., Sahiwal District. The deceased and his brother transferred 24 acres of land to Muhammad Shah and got a mutation attested in his favour. Muhammad Shah transferred only five acres of land in their favour. The deceased and his brother shifted to Chak No. 112/E. B. after they got five acres of land. Muhammad Shafi promised to transfer the remaining area to them later. After the deceased and his or other Hayat had shifted to Chak No. 112/E. B. Muhammad Shah. enticed away the daughter of Hayat. Whenever Muhammad Shafi visited Chats No. 112/E.B. the deceased and his brother demanded from him the transfer of the remaining land in their favour.

3. A few days before the occurrence it was rumoured in the village that Muhammad Shafi intended to dispose of the remaining five acres of land. Naturally the deceased and his brother felt anxious because they thought that Muhammad Shafi was out to deprive there of the land.

4. On the fateful day, at about digerwela, the deceased and his brother learnt of the presence of Muhammad Shah. at the Dhari of Ismail, which is at a distance of two squars from the abadi of Chak No. 112/E. B. Hayat along with his son Muhammad Sadiq alias Shada, Ghulam Muhammad deceased and his cousin Hassan went to the Dhari of Ismail at about sunset time. They found Muhammad Shafi and his nephew Nazir Ahmad alias Kala present there. The deceased and his brother demanded from Muhammad Shafi five acres of land and this led to an altercation between them. Muhammad Shah. and Nazir Ahmad alias Kala had their licensed guns with them. Muhammad Shafi told his nephew that they should settle the dispute about the land with the deceased once for all on that day. Kala then fired at Muhammad Sadiq alias Shada who was fait on the right arm. Muhammad Shafi fired at Ghulam Muhammad who was hit in the abdomen on the right side. They dropped to the ground. The persons present including Hayat raised an alarm and the culprits fled. Hassan went and informed Saeedullah Lambardar about the occurrence. He came to the spot and found Ghulam Muhammad lying dead and Muhammad Sadiq injured in Killa No. 23 of Square No.

10. They were brought to Chak No. 112/E. B. Ghulam Muhammad expired at about midnight. On the following morning Hayat went to Gago Police Station at a distance of 12 miles from the spot and reaching there at 7 a. m. lodged the report Exh. P. A.

5. After scribing the report Sub‑Inspector Moazam Beg, P. W. 18 went to Chak No. 112/13. B. He prepared the injury sheet and the inquest report relating to Ghulam Muhammad and then despatched the dead body to the mortuary for post‑mortem examination. He also prepared the injury sheet of Muhammad Sadiq and sent him to Civil Hospital, Gago, for medical examin ation. Saeedullah Lambardar and Nawab Din Chaukidar were associated in the investigation and in their presence the Sub Inspector took into possession blood‑stained earth from two places and sealed it into parcels separately. He recovered a .12 bore empty cartridge P. 1 from near the spot and sealed it into a parcel. On July 6, 1965, Nazir Ahmad alias Kala produced a .12 bore gun P. 2 and the licence P. 3 which were taken into possession vide memo. P. G. The gun was sealed into a parcel by the police.

6. The case was partly investigated by A. S. I. Feroz Khan P. W. 8, who arrested Muhammad Shafi on July 12, 1965, from Police Station Rahimyar Khan. On the following day Muhammad Shafi led to the recovery of D. B. B. L. Gun P. 4, the licence P. 5 and the bandolier P. 7 which contained 22 cartridges P. 6/1‑22 from his residential house which were taken into possession by the police, in the presence of Rehmat Ali P. W. 17 and Ali Muhammad (not produced). The Gun P. 4 was sealed into a parcel.

7. The autopsy on the dead body of Ghulam Muhammad was conducted by Dr. Mukhtar Ahmad P. W. 1 on the 5th of July 1965, at 8 a, m. The deceased had:‑ (1) A lacerated wound, " diameter on middle of right buttock (wound of inlet). (2) A lacerated wound, 2 " x 1 " on lower outer border of abdomen right side. Death, in, the opinion of the doctor, was due to shock and severe haemorrhage on account of injuries which were caused by firearm. The injuries were sufficient to cause death in the ordinary course of nature. Dr. Abdul Ghani P. W. 2 examined Muhammad Sadiq on the 4th of July 1965, at 11 a. m. and found the following injuries on his person :‑ (1) A lacerated wound, 4 " x 1 " x muscle deep, vertical over inner aspect of right fore arm in upper one‑third. There was scorching of skin at the border of the wound. This was wound of entrance. (2) A lacerated wound 5 " x 2 " x bone deep over outer aspect of right forearm in upper one‑third. The muscles were badly lacerated and found swelling. This was the wound of exit. (3) An abrasion mark " x " over hypothinar eminence of left palm. (4) An abrasion mark " x 1/18" oblique over back of left wrist joint. Injury No. 2 was grievous and the rest were simple. Injuries Nos. 1 and 2 were caused with .12 bore firearm while the rest with blunt object.

8. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Shall admitted that he enticed away the daughter of Hayat. He ascribed the case to enmity and the dispute over the land. Nazir Ahmad alias Kala submitted that he had been involved on account of his relationship with Muhammad Shall with whom Hayat and his brother had enmity. They admitted the recovery of their licensed guns from them. No evidence was produced in defence.

9. At the trial, Hayat, his son Sadiq alias Shada and his cousin Hassan gave direct evidence. The gist of their evidence is that on the day of the alleged occurrence at about sunset time they, along with the deceased, had gone to the Dhari of Ismail where the appellants were present. They asked Muhammad Shad to transfer the remaining five acres of land to Hayat and his brother. There was exchange of hot words between them. Muhammad Shall told Nazir Ahmad alias Kala that let five acres of land be transferred immediately to Hayat and upon this Kala fired with the gun P. 2 and hit Sadiq alias Shada. Muhammad Shafi fired with the gun P. 4 and Ghulam Muhammad was hit in the abdomen. They raised the alarm and the culprits ran away. Ismail at whose Dhari the occurrence took place did not support the prosecution. He was declared hostile and was cross‑examined. The trial Court rightly decided not to rely on his evidence.

10. Learned counsel for the appellants strenuously argued that the occurrence took place late at night, that none of the so‑called eye‑witnesses saw the occurrence and that there was inordinate delay in lodging the report to the police which is a clear pointer that the story had been fabricated by the witnesses who are not only interested but also inimical. We now proceed to examine these contentions one by one. Hayat, the maker of the first information report, gave the time of the occurrence as Qareer Shamwela in his report to the police. He deposed, at the trial, that they went to the Dhari of Ismail at about 4 p. m. If Hayat and others had gone to the Dhari of Ismail at about 4 p m. they must have demanded the transfer of the remaining land to Hayat and his brother immediately. In view of the circumstances that Muhammad Shall had enticed away the daughter of Hayat, it could not be expected of Hayat or his relatives to have indulged for sometime in conversation on topics of mutual interest. Muhammad Sadiq alias Shade gave the time of their visit to the Dhari of Ismail as between peshi and digarwela. Hayat and his son made an attempt to establish by their evidence that the occurrence took place when there was sufficient light. This was obviously done in order to avoid the possible objection by the defence as regards the identity of the real culprits. Hassan a cousin of Hayat, however, stated that they went to the Dhari of Ismail at about sunset time. This is consistent with the statement of Hayat in the first information report. The sunset time on the relevant date was 7‑14 p. m. We have a feeling that the occurrence took place much later. The semi digested food in the stomach of the deceased unmistakably proved that the deceased was put to death nearly three hours of his having taken the last meal. It was the month of July and the deceased must have taken the last meal at the earliest by sunset time as is customary with the villagers. The fact that the village Lambardar and the Chaukidar were informed of the occurrence by Hassan at about 10 p. m., further confirms that the deceased and his companion were assaulted between 9 and 10 p. m. and not at sunset time. The distance between the place of occurrence and the Abadi of Chak No. 112/E. B. is only two squares. Saeedullah Lambardar reached the spot at 9‑30 or 10 p.m. So did the village Chaukidar. We, therefore, hold that the occurrence took place at about 9 p.m. and not at sunset time as alleged by the prosecution.

11. The ocular evidence in the case with the exception of Ismail consists of persons who are not only related but also inimical towards the appellants. The village Lambardar admitted that there was enmity between Hayat and the appellants after the abduction by Muhammad Shafi of the daughter of Hayat who is the real brother of Ghulam Muhammad deceased. Muhammad Sadiq alias Shada is a son of Rayat and Hassan P. W. is the mother's sister's son of Shada. He is father's brother's son of Ghulam Muhammad deceased. Muhammad Shafi appellant enticed away the daughter of Hayat 21 years before the occurrence, under consideration, and she is still with him. Muhammad Shafi after he had enticed away the daughter of Hayat turned out his wife who is the sister of the wife of Hayat. He stated that the appellants were sitting in the cotton field on a cot. Hayat and his companions sat on the ground. Hayat clarified that the appellants were sitting at a distance of one Killa from the Dhari of Ismail to the north. Hayat and his companions sat at a distance of 8 or 9 Karams from them towards the north. The appellants were facing them. An empty cot was lying close to the cot on which the appellants were sitting. It is in the statements of Hassan that the appellants were sitting at a distance of 2 Karams from them. Sadiq was sitting close to Hassan towards his right at a distance of one or one and a half Karams from him. Hayat was sitting towards the left at a similar distance from Hassan P. W. Ghulam Muhammad deceased was sitting towards his east. It is surprising that neither Hayat nor Hassan P. Ws were injured as a result of firing with shotguns by the appellants. Hassan stated to the committing Magistrate that Kala fired at Sadiq P.W. from a distance of 4 or 5 Karams, He deposed, at the trial, that Kala fired at Sadiq from a distance of 2 or 3 Karams. This, he said in order to bring his evidence in line with the statement of the medical witness who found scorching of the skin at the border of injury No. 1 on the person of Sadiq. Hassan said further in his statement before the committing Magistrate that Muhammad Shafi appellant fired at the deceased from a distance of 5 Karams. He did not stick to this position in his statement at the trial. The ocular evidence is consistent that the deceased was facing Muhammad Shafi when the latter fired at him. The mortal injury caused to the deceased was on the right buttock and the missile had gone out at the lower outer border of abdomen on right side. If the deceased was facing the assailant when he fired at how could the injury be caused in the middle of the right buttock. The eye-witness account is inconsistent with the medical evidence and cannot be accepted because had Hayat and Hassan P. Ws. been so close to the victims of the crime who were fired at from 3 or 4 Karams they could not have possibly come out unscathed. The injury to the deceased in the middle of the right buttock could not possibly be caused in the manner alleged by the prosecution.

12. It has been demonstrated in this case that Nazir Ahmad alias Kala appellant had been implicated in the case falsely. The village Lambardar admitted that the deceased did not name Kala as one of the assailants. The witness continued that even Shada did not name Kala as the assailant. The witness goes on to say that he did not come to know before Kala was sent for by the police that he too had been named in the first information report as a culprit. The Lambardar admitted that Kala had been implicated on account of his relationship with Muhammad Shafi appellant. Once it is held that the complainant and his witnesses falsely implicated Kala on a capital charge, it becomes impossible to accept their evidence even against Muhammad Shafi. The village Chaukidar made a damaging admission when he deposed that the culprit was not named during the night and that Muhammad Hayat lodged the report on mere surmises.

13. The trial Judge found sufficient corroboration of the ocular evidence from the oral dying declaration of Ghulam Muhammad to the village Lambardar in the presence of the eye. witnesses, and the recovery of crime cartridge from spot which the Ballistics Expert found to have been fired with the gun recovered at the instance of Muhammad Shafi appellant. There is no mention of the oral dying declaration of the deceased to the village Lambardar by Hayat P. W. in his report to the police. The Lambardar was produced to prove the recovery. The prosecution did not examine him regarding the oral dying declaration by the deceased in his presence. The Chaukidar who accompanied the village Lambardar to the spot, gave him a lie direct when he deposed that they did not ask the deceased as to who had injured Shada nor Ghulam Muhammad deceased told them who was his assailant. The oral dying declaration is, therefore, neither here nor there and we rule out this piece of the evidence froth our consideration,

14. The recovery of crime empty was effected on the 4th of July 1965. The Sub-Inspector tells us that on July 6, 1965, he gave four sealed parcels including the one containing the crime empty ;o M. H. C. Gulzar Hussain who retained the parcels with him till the 13th of July 1965, when he entrusted three sealed parcels including the one containing the crime empty to F. C. Talib Hussain who delivered the parcel containing the crime empty at the office of the Forensic Science Laboratory, Lahore. The parcel containing the crime empty was not submitted to the expert till after the recovery of the gun from possession of Muhammad Shafi which is in clear contravention of instructions, which enjoins that the crime empty should invariably be sent to the Expert immediately after the recovery so that the chances of concocting the empties after the recovery of the firearms alleged to have been used in the commission of the crime is minimized to the extreme. Where these safeguards are deliberately cast to the wind the only result which the police can expect to follow is acquittal in serious criminal cases.

15. Muhammad Shafi appellant had a D. B. B. L. gun. He fired only once and there was no occasion for him to load the gun again or throw away the empty cartridge. In fact there was no necessity for it. The possibility of concocting the crime empty, therefore, cannot be ruled out to a moral certainty. We, therefore, attach no value to the recovery of crime empty as it was sent to the Expert after the recovery of the weapon of offence.

16. There is no explanation for the delay in lodging the report to the police. The occurrence took place at about 9 p. m. Ghulam Muhammad deceased was mortally wounded. Shada had also received serious injuries. No attempt was made to take them for treatment to Burewala Hospital which is at a distance of nine miles from the spot. It is in evidence that there are 15 or 20 carts in the Chak on which the victims could be removed to Burewala Road for being taken further to the hospital by bus as lorries ply on Burewala Road even during the night. It is not explained why Hayat and others waited till the next morning. In all probability, they utilised the interval in concocting the, story. The delay, by itself, throws considerable doubt as regard is the genuineness of the prosecution case.

17. For all these reasons, we consider the case against the appellants not to be free from doubt. The benefit of doubt, however slight, must go to them. We, therefore, accept the appeal, set aside the convictions and the sentences passed upon the appellants and giving them the benefit of the doubt, proceed to acquit them.

18. Before parting with the case we wish to make it clear that some duty is also cast on the police to act in accordance with law in a case in which it is demonstrated that an accused person has been falsely implicated on a capital charge and desist from bolstering the case up either by padding or fabricating evidence in proof of his complicity in commission of the crime. C.M.S. Appeal accepted.