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Criminal Appeal No. 530 of 1963, decided on 31st January 1968.

S. 302‑Murder‑Case against accused not free from reasonable doubt‑Benefit of doubt, how ever, slight must go to accused.

Duty to Court‑Counsel not present when case called for‑High Court sending message for appearance but counsel instead of making personal appearance intimating that his client has taken away papers from him‑Conduct of Advocate, held, discourteous.

Ss. 435 & 438 Sessions Judge by inadvertence naming wrong accused as acquitted Ractification of judgment sought by means of reference to High Court‑Held, provisions of Ss. 435 & 438 not attracted and cannot be pressed into service by Sessions Judge for corrections of his own order by High Court.

D. M. Awan for Appellants.

Major Waheed‑ud‑Din for A.‑G. for the State.

Dates of hearing : 30th and 31st of January 1968.

Akbar (75), Ashraf (50), Feroze (42), Abdullah (45) and Walayat (17) were tried for offences under sections 148, 302/149 and 307/149, P. P. C. by Mr. Muhammad Munir Farooqi, Additional Sessions Judge, Lahore at Sheikhupura, camp at Gujrat, who acquitted Akbar, Ashraf and Walayat of all the charges but convicted Feroze and Abdullah under section 302 read with section 34, P. P. C. for the murder of Iqbal and under sections 307/34, P. P. C. for attempt on the life of Fazal Hussain in the area of village of Pero Shah in Gujrat District on the night intervening the 30th of June and the first of July 1962 and sentenced each one of them to transportation for life on each count. They were further ordered to pay a fine of Rs. 1,000 each under section 302/34, P. P. C. and in default to undergo rigorous imprisonment for a period of six months each and a further fine of Rs. 500 each was imposed on them under section 307/34, P. P. C. and in default they were ordered to undergo rigorous imprisonment for a further period of three months. The convicted persons appealed and the learned Additional Sessions Judge made a reference for rectification of mistake committed by him in that fn place of Ashraf whom he found guilty on both the counts with Feroze the learned Judge had inadvertently convicted Abdullah who had to be acquitted. The Division Bench comprising of A. R. Khan and M. Jamil Asghar, JJ. which dealt with the reference on the 31st of January 1964 directed the issuance of notice to Ashraf, Abdullah as well as to the State. Abdullah was released on bail by the Division Bench on the 4th of February 1964. It may here be stated that notwithstanding the error committed by the learned trial Judge of which the Public Prosecutor as well as the District Magistrate, Gujrat must also have presumably come to know in due course of time still no appeal by the State was filed against the acquittal of Ashraf. We propose to dispose of the reference which the office registered as Cr. R. 863/63 as well as the appeal of the convicted person by a single judgment.

2. Shortly stated the prosecution case was that on the night of the alleged occurrence five persons, namely, Ashraf. Feroze, Akbar, Walayat and Abdullah, went to the Behk of Iqbal deceased which is at a distance of 21 Killas towards the south of village Pero Shah. Feroze and Ashraf were armed with rifles while the rest of their companions had sticks. Ashraf and Feroze opened fire with their rifles. Anwar, who was sleeping at the Behk of Iqbal, at a distance of 8 Karams towards south‑west of the place where Iqbal and Fazal Hussain were sleeping, concealed himself under the cot and came out after the assailants had left the place. He found Iqbal and Fazal Hussain lying seriously injured. Anwar went to the village and on reaching his diwan khana found that his father too had been killed. Anwar proceeded to the house of his uncle Hassan Dad and discovered that he was also done to death. Anwar narrated to certain persons in the village what had happened at the Behk. Iqbal was taken on a cot towards the hospital but he died in the way and his dead body was brought back to the village.

3. The motive for the murder was vendetta. Eighteen years before the occurrence, under consideration, Muhammad Ashraf, who was related to Mian Khan (accused in the other case) and Zaman were put to death. Three brothers of Iqbal and Hassan Dad were tried in that connec tion but the law had failed to punish them. Five or six days before the occurrence, which is the subject‑matter of this case, there was an altercation between Anwar and Mian Khan on the occasion of the marriage of the daughter of Nawab, and Mian Khan had thrown out a challenge to Anwar.

4. The report regarding the occurrence was lodged at Karianwala Police Station at a distance of 8 miles from the spot by Anwar on July 1, 1962 at 8 a.m. After scribing the report Sub‑Inspector Ghulam Hussain P. W. 17 visited the village, prepared the injury sheet and the inquest report relating to Iqbal deceased and then despatched the dead body to the mortuary for post‑mortem examination. He took into possession blood‑stained earth from the spot and sealed it into a parcel. Three 303 empties Exhs. P. 29 to P. 31 were recovered from the spot by the police and sealed into a parcel. The stool P. 5 and lantern P. 6 were also taken into possession by the police from the Behk of Iqbal deceased. A pair of shoes P. 1‑2 was recovered from a field and was taken into possession by the police. Abdullah was arrested on July 3, 1962 while Feroze and Ashraf came to be apprehended by the police on the 8th of July 1962.

5. Dr. Abdul Qayyum P. W. 1 held the autopsy on the dead body of Iqbal on the 2nd of July 1962 at 8‑30 a.m. The deceased had :‑

(1) A gun‑shot wound, 1" x 4", on the left buttock in its upper outer quardrant with a bluish area 1/4th of an inch around.

(2) An abrasion on the forehead " x ".

Death, in the opinion of the doctor, was the result of shock following the comminuted fracture of the left femur and hip bones.

The same doctor on the 1st of July 1962 at 9 a.m. examined Fazal Hussain P. W. and found the following injuries on his person:‑--

(1) A gun‑shot would 1" x 1/3" above the middle of the right collar bone which was a wound of entry.

(2) A gun‑shot wound (entry) " x ", with swelling 2" x 2" on the right lower jaw.

Injury' No. 1 was grievous in nature while injury No. 2 was simple which were caused by gun‑shot.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity. Elaborating the point Ashraf said in his statement that he was suspected of theft of cloth from the shop of Inayat son of Niaz, a brother‑in‑law of Hassan Dad, the deceased in the other case and on that account he had been involved in the case. No evidence was produced in defence.

7. The prosecution case rested on the evidence of Anwar P. W. 7 and Fazal Hussain P. W. 8. They deposed that on the night of the alleged occurrence they listened to the Radio Programme on the Transistor at the Behk of Iqbal up to 10 p.m. and then went to sleep. They woke up at midnight on hearing gunfire from the direction of the village. Shortly afterwards, Feroze, Ashraf, Akbar, Walayat and Abdullah came there. Feroze and Ashraf had rifles while their companions had sotas. Ashraf and Feroze fired at Iqbal and Fazal Hussain, who were injured. While leaving the place, Feroze remarked that luckily Anwar P. W. 7 was there at the Behk and Ashraf replied that he was fortunate. Muhammad Ashraf P. W. 12 and Hakam Khan P. W. 13 were produced to prove that shortly after the occurrence when Anwar came to the village he narrated to them what had happened.

8. Anwar claimed that when he first saw the accused from a distance of eight or ten Karams he was sitting on the cot. The lantern P. 6 was burning and he identified the assailants in the lamp light. Anwar was unable to say whether Iqbal was standing, sitting or lying on his cot when the assailants fired at him. Anwar stated that he concealed himself under the cot. His shoes were lying near the cot on which he had been sleeping. The cot was of ordinary size and anybody concealing himself under the cot would be visible from the place where the accused were standing if any one of them looked under the cot. The accused were at a distance of five Karams from the cot. The lantern was lit at a distance of about eight Karams. Anwar had a white Bunyan and a black tehband on his person and could be easily spotted if he was really there. It is also in the statement of this witness that the assailants passed by the side of his bed at a distance of three Karams from him and within their sight Anwar got down and concealed himself under the cot. Anwar remained at the spot for four or five minutes after the assailants left the place and then went to the village. Till then nobody from the neighbouring Behks or the village Abadi came to the spot. Why none from the neighbouring Behks or the village Abadi turned up on hearing gunfire at the Behk, remains unexplained on the record.

9. Anwar had direct enmity with the accused. Eighteen years ago one Ashraf, who was related to Mian Khan, accused in the second case, and a person from his brotherhood, Zaman by name, were put to death. Twelve persons including Hassan Dad, the uncle of Anwar, were challaned in that case but all of them were acquitted. We doubt that Anwar P. W. was really present at the Behk of Iqbal deceased when the latter was shot. There were only two cots at the Behk which also confirms that only two persons were there. Had Anwar been there he could not have possibly come out unscathed because Mian Khan, who had thrown out a challenge to him five or six days before the occurrence, under consideration, is the nephew of Akbar accused in this case.

10. We have it on the record that Feroze and Abdullah appellants are real brothers. Anwar P. W. was unable to give the relationship of Walayat accused with the other co‑accused. Akbar accused is the uncle of Mian Khan. Anwar was unable to connect Zaman, the deceased person in the earlier case, with any of the accused in this case or the accused in the connected case. He admitted that four persons, who were being prosecuted for the murder of his father Akbar Ali and uncle Hassan Dad are related to the accused in this case. The probabilities are that Anwar P. W. implicated the accused in this case on account of their relationship with the persons who were named as the assailants of Akbar Ali and Hassan Dad.

11. Anwar P. W. 7 deposed that he left for the Thana at morning prayer time. It is in the statement of Inayat P. W. 9 that three quarters of an hour after sunrise Iqbal was removed on a cot towards the Civil Hospital, Gujrat, but he expired on the way near Fatehpur at a distance of 2 miles From village Pero Shah and his dead body was brought back to the Diwankhana at chhahwela. Iqbal had been mortally wounded and if Anwar P. W. had really seen the occurrence then there is 4o explanation why Iqbal and Fazal Hugsain P. W. 8 who too was seriously injured, were not immediately taken to the hospital. When Inayat P. W. went to tile Behk, he did not se‑ any Transistor Radio there nor any such Radio Transistor was recovered from the spot by the police. We disbelieve the story that Anwar P. W. 7, Iqbal deceased and Fazal Hussain P. W. 8 listened to the Radio Programme till 10 p.m. at the Behk of Iqbal. We have every reason to believe that Anwar P. W. was not at all there at the Behk of the deceased when he was fatally injured as a result of rifle shot. Fazal Hussain P. W. 8 was undoubtedly injured but the impression that we gained on going through his statement was that he failed to identify the assailants. The night was 'dark. The story that the lamp was kept burning at the Behk because last year a wolf had attacked the animals, is not convincing. It is in the statement of Anwar that he remained at the spot only for four or five minutes and then went away to the village. Fazal Hussain stated that shortly after the occurrence Anwar sent some persons from the village including the mother of Fazal Hussain and they removed him to the village. It is curious that Fazal Hussain did not bother to enquire about the condition of Iqbal deceased so long he remained at the Behk. He was unable to say if Iqbal was alive or had died when he himself was removed to his house. Fazal Hussain remained in his house till morning when he was taken in a tonga to the civil hospital. He reached the hospital at 9 a.m. but it took the police two days to record his statement which indicates that Fazal Hussain did not know who actually had fired and injured him and the deceased. Fazal Hussain had no enmity, whatsoever, with any of the accused and had done nothing at the time of the alleged occurrence to invite their wrath. Fazal Hussain was unable to say as to which of the two accused, namely, Ashraf and Feroze, had fired at him. The other three accused were standing at a distance of seven Karams from Fazal Hussain P. W. in the dark and still he claimed to have identified them which is unbelievable. The entire occurrence took about ten minutes from the time of the arrival of the accused to the time of their departure. Fazal Hussain was not in a position to explain why nobody from the village came to the Behk till Sehriwela, particularly, when the village is only two Killas away. It means that there was nobody at the Behk to go and inform the villagers of what had happened. Fazal Hussain is a carpenter and it seems that it took two days to persuade him to support the version of the complainant party and when he finally agreed his statement was recorded by the police in the hospital.

12. According to the doctor, Iqbal had died three to four hours after the last meal. It was the month of July and Iqbal must have taken the last meal near about sunset time. It means he was fatally injured come time before midnight and died shortly afterwards. The evidence of the doctor cuts across the prosecution version that Iqbal was removed from the Behk while be was still alive still died the next morning when on the way to the Civil Hospital, Gujrat, near Fatehpur. The nature of injuries caused to the victims of the crime is a clear pointer that they were seriously injured as a result of stray shots fired from a distance by some snipers and not fired from close quarters as alleged by the prosecution.

13. The trial Judge did not rely on the prosecution story in its entirety and acquitted three out of the five accused persons. We consider the case against the appellants not to be free from reasonable doubt. file benefit 4 doubt, however slight must go to the appellants. We set aside the convictions of Feroze and Abdullah appellants and giving them the benefit of the doubt, proceed to acquit them. Feroze is in jail and we direct that he be set at liberty forthwith provided always that his detention is not necessary in connection with any other matter. Abdullah is on bail and his bail bond shall stand cancelled. The appeal is accepted.

14. Before we part with the appeal we wish to express our disapproval oil the conduct of Messrs Rafiq Ahmad Sheikh and Khalid Mahmood Chaudhry who represented Abdullah. The case appeared in the list and the names of both the counsel were shown against the appeal. They did not appeal when the case was called and when we sent word to Mr. Khalid Mahmood Chaudhry he bad not even the courtesy to appear before the Court but conveyed it to us that the client bad taken away the papers from him.

15. Turning to the reference by the learned Additional Sessions Judge, we find that the error committed by him resulted in the incarceration of Abdullah in jail whom the learned Judge himself did not find to be guilty. Since we have acquitted Feroze and Abdullah doubting the correctness of the prosecution story as a whole, it is not possible to give effect to the recommendation of the learned Additional Sessions Judge. The reference is only of an academic interest but at the same time we wish to make it clear that the provisions in sections 435 and 438, Cr. P. C. are not attracted in a case of this nature. The provisions in the Cr. Procedure Code referred to above, are not meant to be pressed into service for referring by the Sessions Judge his own order with a recommendation that it be corrected.

In view of the order passed in Cr. Appeal No. 530/63 the reference made by the learned Additional Sessions Judge, fails and is dismissed.

The bail bond of Ashraf shall stand cancelled.

K.B.A. Appeal accepted.

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