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Criminal Appeal No. 661 of 1966, decided on 26th October 1967.
S. 302‑No empties recovered from place o/' occurrence‑Pistol recovered, in circumstances, cannot be said with judicial certainty to be one used in commis sion of offence‑Recovery of pistol, held, of no corroborative value in such circumstance.
S. 302‑Injury, caused by pistol shot, found to be scorched‑Medical evidence that pistol was fired from distance of 6 feet found not in accord with opinion expressed in a treatise on fire‑arms and ballistics‑Opinion of ballistic expert preferred to that of doctor‑Evidence Act (I of 1872), S. 45.
The Identification of Firearrris and Forensic Ballistics by Major Sir Gerald Burrard, Rev. Edn, p. 58 ref.
S. 540‑Court examining prosecution witness as Court witness without his being declared hostile and thus affording complainant opportunity to cross‑examine his own witness‑Procedure improper and prejudicial to accused.
S. 367‑Judgment Court should first discuss prosecution evidence before examining defence evidence‑Discussing defence evidence prior to dealing with prosecution evidence‑Procedure, held, illegal.
Ch. Nazir Ahmad assisted by Ch. Eitizaz Husain for Appellants.
Rustam Sidhwa for A: G. for the State.
Dates of hearing : 9th, 10th and 11th October 1967.
Ikram‑ul‑Haq appellant, aged 29 years, was convicted under section 302, P. P. C. and sentenced to death for the murder of Muzaffar Khan Paracha, deceased, aged about 40 years by the learned Additional Sessions Judge, Rawalpindi. Chaudhry Zafar‑ul‑Haq appellant, Who is the father of Ikram ul‑Haq appellant, was only convicted under section 323, P. P. C. and sentenced to a fine of Rs. 500.()0 or in default to undergo simple imprisonment for six months for causing simple hurt to Mst. Pukhraj (P. W. 6), Nawaz‑ul‑Haq, another son of Ch. Zafar‑ul‑Haq appellant, who was also tried along with the appellants, was, however, acquitted. The appellants, against their convictions and sentences, have preferred this appeal. The learned Additional Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentence awarded to Ikram‑ul‑Haq appellant.
2. Noor Ilahi Paracha (P. W. 3) has filed a revision against the acquittal of Ch. Zafar‑ul‑14aq and Nawaz‑ul‑Haq under section 302, P. P. C. and for enhancement of sentence of Ch. Zafar‑ul‑Haq under section 323, P. P. C. In Court, however, the learned counsel for Noor Ilahi only pressed for enhancement of sentence of Ch. Zafar‑ul‑Haq u0der section 323, P. P. C. and gave up his other prayer. Since the appeal, reference and the revision arise out of the same judgment, they will be disposed of together by this order.
3. The appellants and the co‑accused are residents of Mohallah Waris Khan, Rawalpi0di. Muzaffar Khan deceased also used to reside in the same Mohallah.
4. One Mst. Jamila Khatoon, daughter of Ch. Jahan Dad Khan, who is the son of Gul Saraj, real brother of Ch. Waris Khan, father of Ch. Zafar‑ul‑Haq appellant, was married to one Tariq Azam son of Mst. Zainab Bibi, a sister of Jahandad Khan. Sometime after marriage she separated from Tariq Azam and started living at her parents house on Murree Road, Rawalpindi. During the period of separation, it is alleged, that she started liaison with Muzaffar Khan Paracha deceased. Sometime later she brought a suit for dissolution of marriage against her husband, Tariq Azam and obtained an ex parte decree in her favour about .one year prior to the occurrence, under consideration. Thereafter on the 18th of April 1962, she married the deceased vide Nikahnama Exh. P. J. This marriage took place against the wishes of the Chaudhrys of Rawalpindi and that is why none of her relations attended that marriage. Chaudhry Zafar‑ul‑Haq appellant, who is the head of Chaudhry family, felt annoyed over this marriage. According to the complainant, Noor Ilahi (P. W. 3), this constituted the motive for the occurrence, under consideration.
4‑A. On the 13th of April 1963, at about 2 p.m., while Noor Ilahi P. W. was going from his house to his shop, situate in street No. 1, Mohallah Ch. Waris Khan and in the way when he reached the corner of streets Nos. 1 and 23, he saw Muzaffar Khan deceased proceeding towards his house in street No. 23. He also saw Ch. Zafar‑ul‑Haq and his two sons, Ikram‑ul‑Haq and Nawaz‑ul‑Haq, coming from street No. 1 and when they reached near the crossing of streets Nos. 1 and 23 Ch. Zafar‑ul‑Haq shouted a lalkara at Muzaffar Khan deceased, saying that he would teach him a lesson for the marriage. The deceased turned round on hearing the lalkara. Choudhry Zafar‑ul‑Haq and Nawaz‑ul‑Haq then exhorted Ikram‑ul‑Haq to kill the deceased. Ikram‑ul‑Haq appellant thereupon started firing with a pistol at the deceased, as a result of which he was hit in his chest, abdomen, near the shoulder, arm and head and fell down on the ground and died. During the course of the occurrence Mst. Pukhraj (P. W. 6) also came there running on hearing the noise and begged the appellants not to be cruel. Chaudhry Zafar‑ul‑Haq appellant there upon called her a bitch and gave her three or four stick blows. Besides her and Noor Ilahi P. W., the occurrence was also witnessed by Fayaz‑ud‑Din (P. W. 4), Fazal Ilahi (P. W. 5) and Abdul Khaliq (not examined). The appellants and their companion then left that place, taking their weapons with them. Noor Ilahi P. W. then went to Police Station C' Division, about 1 furlongs away from the spot, and lodged first information report Exh. P. A. at 2‑20 p.m. on the same day, which was recorded by Sub Inspector Ali Muhammad (C. W. 4) at his dictation. The names of the aforementioned eye‑witnesses were mentioned in the first information report. After that the Sub‑Inspector went to the scene of offence and after preparing injury statement Exh. P. T. and inquest report Exh. P. U. of the dead body of Muzaffar Khan deceased sent it to the mortuary for post‑mortem examination. He also prepared injury statement Exh. P. V. of Mst. Pukhraj (P. W. 6) and got her medically examined. He secured bloodstained earth from the scene of offence. He also took into his possession a lead of bullet Exh. P. 1 vide memo. Exh. P. C. and made it into a sealed parcel. Fayaz‑ad‑Din (P. W. 4) produced 38 bore bullet Exh. P. 2, which the Sub‑Inspector took into his possession vide memo. Exh. P. D. and made it into a sealed parcel. One Benaras also appeared before him in an injured condition and so the Sub‑Inspector prepared his injury statement Exh. P. X. and got him medically examined. On the 24th of April 1963, Sub‑Inspector Manzur‑ul‑Haq, another brother of Ikram‑ul‑Haq appellant, produced revolver Exh. P. 9 and its licence Exh. P. 10 before Sub‑Inspector Ali Muhammad C. W., who took them into his possession vide memo. Exh. P. Z. and made the revolver into a sealed parcel. Prior' to that on the 15th of April 1963, Ch. Zafar‑ul‑Haq appellant had produced his licence Exh. P. 11 relating to revolve Exh P. 9, which the Sub‑Inspector had taken into his possession vide memo. Exh. P. A. A. It appears that the revolver Exh. P. 9' Belonged to Ch. Zafar‑ul‑Haq appellant and later on it was transferred to his son, Sub‑Inspector Manzur‑ul‑Haq. On th24th of April 1963, the Sub‑Inspector recorded the statements of Muhammad Iqbal son of Abdur Rehman, Muhammad Sharif, Muhammad Ashraf, Muhammad Iqbal son of Hayat Muhammad Qureshi and Muhammad Bashir Awan and came to the conclusion that Ch. Zafar‑ul‑Haq and his son Nawaz‑ul‑Haq were not present at the time of the occurrence, and that Muzaffar Khan deceased was murdered in a fight, which had taken place between him on the one hand and Ikram‑ul‑Haq and Banaras on the other. The motive for that fight found by him was that Muzaffar Khan deceased was obliterating the words Mohallah Waris Khan' and. instead was putting words Mohallah Paracha or Parachgan' on. the sign boards affixed in the Mohallah, because the deceased and firs party had asserted that the name of the Mohallah was. Mohallah Paracha or Parachgan', while on the other hand the appellants and their party asserted that the name of the Mohallah was Ch. Waris Khan' and this had resulted in strained relations between the two parties. The Sub‑Inspector on com pletion of investigation found that Muhammad Iqbal son of Abdur Rehman, Muhammad Sharif, Muhammad Ashraf, Muhammad Iqbal son of Hayat Muhammad Qureshi and Muhammad Bashir Awan, were, in fact, the eve‑witnesses of the occurrence and not the persons mentioned in the first information report by Noor Ilahi P. W. Noor Ilahi P. W. being dissatisfied with the investigation carried out by the local police made several applications to the higher authorities, as a result of which the investigation was handed over to Crimes Branch, Lahore. The case was then investigated by Inspector Ajmer Shah (C. W. 10) of the Crimes Branch, who also came to the same conclusion. The investigation was verified by Deputy Super intendent of Police, Ch. Muhammad Siddique (C. W. 2) of the Crimes Branch and as a result thereof Ikram‑ul‑Haq and Banaras were challenged. In other words the Crime Branch Police also endorsed the view of the local police. The com plainant, Noor Ilahi, who is one of the alleged eye‑witnesses of the occurrence, felt dissatisfied with the final result of the police investigation. He, accordingly, on the 5th of July 1963, filed a complaint Exh. P. H. against Ch. Zafar‑ul‑Haq, Ikram‑ul‑Haq, appellants and Nawaz‑ul‑Haq, acquitted accused under section 302/34, P. P. C. The allegations contained in the complaint were identical with the allegations mentioned in the first information report Exh. P. A.
5. At the stage of the commitment proceedings the question arose as to how the complaint case and the challan case were to be dealt with. The matter was brought up to be considered by the High Court in Criminal Revision No. 1049 of 1963. The learned Single Judge disposed of that revision petition with the direction that the complaint and the challan shall be consolidated for the purpose of recording evidence. The witnesses common to both the cases were to be produced only once. They would be first examined by the State Prosecutor, then by the counsel for the complainant and cross‑examined by the counsel for the accused. Any additional evidence beyond the testimony of the witnesses mentioned in the challan was also to be produced by the complainant subject to the same procedure. As a result of the committal inquiry in respect of the challan case and the complaint case the learned Magistrate made two separate commitment orders in the two cases. The complainant thereafter filed an application before the learned Additional Sessions Judge, Rawalpindi, who was to try the cases, praying that there; should be two separate trials. That application was rejected by the learned Additional Sessions Judge because he evidently intended to have a joint trial of the two sets of accused, though they contained no common name. It may be mentioned here that according to police challan Banaras was accompanied by one Ch. Ikram', who was apparently not identified and, therefore, is not to be confused with Ikram‑ul‑Haq accused of the other case. The complainant then approached the High Court again for redress in revision. The learned Judge heard the revision petition and held that a joint trial of the two sets of accused would not be legal. He, therefore, set aside the order of the learned Additional Sessions Judge and ordered that there should be two separate trials. He further directed that the procedure accepted during the commitment proceedings should be adopted during the trial as well. The first case, however, to be taken up should be the challan case submitted by the prosecution. Any additional evidence, which the complainant wished to lead in his case should be recorded after the conclusion of the evidence in the challan case. It was further directed that the evidence of common witnesses should be recorded once and read in both the cases, and that the learned Sessions Judge or the Additional Sessions Judge trying both the cases should deliver Judgments simultaneously. This order was agitated by the complainant before the Supreme Court; Special Leave to appeal was granted in order to consider‑the question whether the special procedure laid down for trial by the learned Judge had the sanction of law. The Supreme Court in case of Nur Ilahi v. State (PLD 1966 SC 708) observed‑‑--
"After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the police challan if they were not already examined on behalf of the complainant, as Court witnesses under section 540‑A of the Criminal Procedure Code, so that they can be cross examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. IF that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in am acquittal, he might still have to consider whether the police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross‑examination of the relevant witnesses as permitted by law."
6. Dr. Muhammad Sami (P. W. 2) on the 13th of April 1963, at 11‑15 p.m., examined Banaras and found the following injuries on his person:‑
(1) A lacerated wound, 2 "x ", scalp deep on the parietal region.
(2) Complained of wound in the abdomen. There was no external sign of injury.
(3) A contusion, " x ", on the left forearm.
(4) Complained of pain in the left lumber region. All the injuries were simple and had been caused by a blunt weapon. In the opinion of the doctor the injuries were not self‑inflicted.
7. Lady Doctor Razia Khan (P. W. 18) on the same day at 5‑45 p.m. examined Mst. Pukhraj Begum P. W. and found the following injuries on her person‑
(1) A contused wound, 1'' x 1/6'' x ", on the right side of the head, oblique in direction, under the mid line.
(2) Two abrasions of smaller size on the back part of middle and ring fingers of left hand.
(3) A contusion, 2 " x 1'' on the right side of chest back part and in its middle 1/3rd transverse in direction corres ponding to the length of a club, about 1'' away from the mid line."
(4) A contusion, 1 '' x 1 ", on the left side of chest in its back part rounded in shape corresponding to the butt of a club about 3'' away from the mid line and 1/3rd is its middle.
In the opinion of the doctor all the injuries were simple and bad been caused by a blunt weapon, and that injuries Nos. 1 and 2 could be the result of a fall or could be self‑inflicted. Regarding injury No. 3 the lady doctor opined that it would not be possible as a result of a fall, but it could be caused by a friendly hand.
8. Doctor Maqsood Khan (P. W. 1) on the 14th of April 1963, at 8 a.m., performed post‑mortem examination of the dead body of Muzaffar Khan deceased and found the following injuries:
(1) One circular lacerated wound, " in diameter on the right side of the abdomen, just above the middle of right inguinal fold.
(2) One circular lacerated wound, 1/3" in diameter on the left side of the chest, 2'' above and to the inner side of left nipple.
(3) One circular lacerated wound, '' in diameter just below the inner end of right clavicle, it was chest cavity deep.
(4) One circular lacerated wound, " in diameter on the Tight side of the face, 1 '' in front of the right ear. It was bone deep.
(5) A lacerated wound, 1 '' x 1 " x bone deep over the top of skull, slightly towards the back.
(6) A superficial contusion near the outer side of right nipple.
(7) An abrasion, " x '', over the back of left elbow joint.
(8) (a) An entrance wound, Z" in diameter over the posterior axillary fold.
(b) An exit wound, 1/3" in diameter, 1" away from injury No. 8 (a).
Scorching was found present around wound Nos. 1, 2 and 3. Injury No. 2 had pierced the left side of sternum. There were injuries corresponding to injuries Nos. 2 and 3 on the pleura. In the right lung there was lacerated wound on the upper to be corresponding to injury No. 3. The bullet lacerated the upper lobe, then went slightly downwards injuring the posterior surface of the right lung and got stuck in the right posterior chest wall between 7th and 8th ribs. In the pericardium and heart following injuries were found:‑--
(1) (a) A lacerated wound on the anterior surface 2" in diameter (both in the anterior wall of pericardium and anterior wall of the heart), through and through the wall.
(b) A lacerated wound through and through the posterior wall 1/3" in diameter. The pericardial cavity contained blood. Blood vessels were healthy.
In the diaphragm there was a hole " in diameter below the heart. In the stomach there was a hole is the anterior wall. There was a circular hole in the posterior wall of the stomach. In the bladder there was a circular holy on the right side corresponding to injury No. 1. The bullet went through the bladder in the left thigh. In the opinion of the doctor the death of the deceased was due to shock and haemorrhage resulting from injuries to the vital structures of the body, i.e. heart, right lung, stomach and bladder, which were sufficient in the ordinary course of nature to cause death. All the injuries, except injuries Nos. 5 and 6, were caused by some firearm like pistol. The doctor was definite that injury No. 5 could not be the result of a fall and that injury No. 6 was the result of a definite injury and not in consequence of other injuries caused to the deceased. Regarding injury No. 7 the doctor opined that it may be due to a fall.
9. The appellants denied their guilt and examined some witnesses in their defence. Chaudhry Zafar‑ul‑Haq appellant before the committing Magistrate made the following state ment:‑--
"I have been involved in this case as a result of faction, which arose because the Parachgan of our Mohallah wanted to change the name of Mohallah Ch. Waris Khan, who was my father, and wanted to name this Mohallah as Mohalleh Parach gan. This controversy had started in 1955. The matter had gone up to the Governor, who had decided to retain this name. These Parachgan also tried to change the name of this Mohallah through a resolution of the Committee, but could not succeed."
He also added:
"I am an old man and I am not keeping good health. I usually remain in my house and at the time of the alleged occurrence I was present at my house, which is far away from the spot. There was a party at my house and a number of guests including non‑Muslims were there with me. All the P. Ws. deposing against me as eye‑witnesses are the members of Paracha faction. The Parachas have raised a huge fund and they are prosecuting this case on the consideration of party feelings. I am innocent and my innocence had been established during the investigation by the independent officer of the Crimes Branch, Lahore and the local police officers."
At the trial regarding Mst. Jamila he stated that she had married Muzaffar Khan Paracha, for which he had no grudge against Parachas on account of divorce proceedings against her former husband, Tariq Azam and after that her marriage with Muzaffar Khan Paracha He further stated that he was not on good terms with Ch. Jahan Dad, father of Mst. Jamila Khatoon since long. At the trial he made the following statement:‑--
"I am an aged person and 1 am suffering from acute rheumatism and heart affliction. I have given up all the interests even in local politics on account of my ill‑health. At the time of the alleged occurrence, I was present at my house, which is far away from the spot and was acting as a host to a number of persons at a, lunch in connection with the arrival of some of my old friends, who are Sikhs and had come to Rawalpindi in connection with the Besakhi festival. My son, Ch. Ikram ul‑Haq, was away from Rawalpindi on that day. Noor Ilahi, Abdul Khaliq, Mst. Pukhraj and her husband, Fayaz‑ud‑Din, Fazal Ilahi, Malik Abdul Qayyum Paracha and Abdul Aziz P. W. and others have organised a Paracha party since long and they have falsely involved us in the present case. Nawaz ul‑Haq was also with me at my house at the said time. The Paracha party is agreed to the fact that the Mohallah was known by the name of Mohallah Chaudhury Waris Khan since long. I produce certified copies of the Municipal Record, which are Exhs. D. M. D. M/1 to D.M/10."
Ikram‑ul‑Haq appellant, before the committing Magistrate, made the following statement:---
"I was not present at the time of the occurrence. I am innocent. The P. Ws., who have deposed against me, have involved me in the case on account of partisanship. My relations with the P. Ws. had become strained as a result of my marriage with the daughter of Malik Shamas‑ud -Din Paracha. At the time of my marriage with the daughter of Malik Shamas‑ud‑Din Paracha, the other members of Paracha family, including the P. Ws., had taken serious excep tion and boycotted Malik Shams‑ud‑Din. They had not participated in my marriage and since then have been trying to disgrace me."
At the trial he made the following statement :‑--
"On the day of occurrence I was away to village Bundial, where I had gone few days earlier. On the 17th of April 1963, while I was at Lahore, I learnt about the present occur rence and my false implication I appeared before the police on the 18th of April 1963."
10. The case against the appellants in the complaint case rests on the testimony of the eye‑witnesses, namely, Noor Ilahi Parucha (P. W. 3), Fayaz‑ud‑Din (P. W. 4), Fazal Ilahi (P. W. 5) and Mst. Pukhraj (P. W. 6). Abdul Khaliq, who was also mentioned as an eye‑witness in the first information report, was given up. Out of the aforementioned eye‑witnesses, Mst. Pukhraj P. W. is alleged to have received injuries at the time of the occurrence. The learned Additional Sessions Judge also examined the eye‑witnesses mentioned in the police challan case as Court witnesses under the instructions of the Supreme Court. They are:‑-
Muhammad Iqbal son of Abdur Rehman (C. W. 5), Muhammad Ashraf Mughal (C. W. 6), Muhammad Bashir Awan (C. W. 7) and Muhammad Iqbal son of Hayat Muhammad Qureshi (C. W. 8).
11. The recovery of licensed revolver Exh. P. 9 from Manzur‑ul‑Haq, brother of Ikram‑ul‑Haq appellant has no corroborative value, because no empties were recovered from the place of occurrence and, therefore, it cannot be said with judicial certainty that the same revolver was used in the commission of offence.
12. Before dealing with the evidence of the eye‑witnesses we would like to deal with the motive as alleged by Noor Ilahi P. W., the complainant in this case. One Mst. Jamila Khatoon, daughter of Ch. Jahan Dad Khan, who is the son of Ch. Gul Seraj, brother of Ch. Waris Khan, father of Ch. Zafar‑ul‑Haq appellant, was married to one Tariq Azam, son of Mst. Zainab Bibi, sister of Ch. Jahan Dad Khan. She brought a suit for dissolution of marriage against Tariq Azam and obtained an ex parte decree in her favour about a year prior to the occurrence, under consideration, after that she married Muzaffar Khan Paracha deceased on the 18th of April 1962, vide Nikahnama Exh. P. J. This marriage was proved by Malik Abdul Aziz (P. W. 11), who was the Registrar of marriages under Family Laws Ordinance vide entry in his register, the copy of which is Exh. P. S/1. According to Noor Ilahi P. W. the appellants started nursing a grudge against Muzaffar Khan deceased as his marriage with Mst. Jamila Khatoon had been performed against their wishes and this constituted the motive for the occurrence, under consideration. From the perusal of the record we find that the appellants were on inimical terms with Ch. Jahan Dad Khan and as such they could not have at reason to commit the offence complained of. This is apparent from the application Exh. D. H. dated the 21st of February 1963, given by Ch. Jahan Dad Khan to the Governor of West Pakistan. Deputy Superintendent of Police Muhammad Iqbal Khan (C.W.3), under whose supervision the local police investigated this case, stated that he had personal knowledge of enmity between the appellants and Ch. Jahan Dad Khan. He disposed of appli cation Exh. D. H. vide his reports Exh. D. L/1, D. L/2 and D. L/3. Application Exh. D. H. was given by Ch. Jahan Dad. Khan on the 21st of February 1963, while the occurrence took place on the 13th of April 1963. Thus it is inconceivable that the appellants could have nursed a grudge against the deceased for having married Mst. Jamila Khatoon. There is also an indication on the record that the motive for the occurrence was totally different. Abdul Majid (P. W. 10), who is the son of the sister of the deceased, stated that two days prior to the occurrence while he and Muzaffar Khan deceased were passing through the gali of Chaudhrys on their way to his (Abdul Majid's) house from the house of Muzaffar Khan deceased, they met Nawaz‑ul‑Haq, acquitted accused, who asked the deceased if be had fixed a sign board on his Mohallah showing that toe name of Mohallah was Mohallah Parachgan. The deceased replied in the affirmative by saying that he being the owner of his own house, was at liberty to do anything he liked and thereupon Nawaz‑ul‑Haq, acquitted accused, told him that he would deal with him. In view of the close relationship of Abdul Majid P. W. with the deceased there is no reason to doubt his testimony. Taking all the aforementioned circumstances into consideration the motive alleged by the com plainant has not been established.
13. As regards the eye‑witnesses in the challan case, namely, Muhammad Iqbal son of Abdur Rehman, Muhammad Ashraf Mughal, Muhammad Bashir Awan and Muhammad Iqbal son of Hayat Muhammad, we find that their version is totally different to the one given by the eye‑witnesses examined in the complaint case. According to the Court witnesses the deceased was seen pulling down boards from the wall of one Mir Sahib with a hockey stick, that at that time Banaras and one Ch. Ikram other than Ikram‑ul‑Haq, appellant, reached there, that Banaras asked the deceased not to remove the boards of Chaudhrys, that thereafter Muzaffar deceased abused Banaras as well as Chaudhrys in general, that Banaras stepped‑ forward and was given two or three blows with a hockey stick by the deceased, upon which aforementioned Ch. Ikram also went forward to separate them, that the deceased then came forward to give some blows with hockey stick to him as well, and that he (Ch. Ikram) stepped back and after taking out a pistol from the dub of his shalwar, fired five or six shots, which hit the deceased and killed him. Thus it will be seen that according to these witnesses the accused persons were not the appellants in this case, but totally different persons. All these witnesses are completely independent and disinterested. Their evidence is also corroborated by the medical evidence on the record. Doctor Muhammad Sami (P. W. 2), who examined Banaras on the 30th of April 1963, at 11‑15 p.m., found injuries on his person. The eye‑witnesses, in the complaint case, have not mentioned the presence of Benaras at the time of the occurrence, and therefore, they have not explained the injuries on his person.
14. Reverting to the evidence of the eye‑witnesses in the complaint case we find that they are all Parachas like Muzaffar Khan deceased. On Mst. Sanawar, the sister of Bashir, son‑in‑law of Mst. Pukhraj P.W., is the wife of Muhammad Din, real brother of Muzaffar Khan deceased. Thus Mst. Pukhraj P. W. is also related to the deceased. This relationship is admitted by Mst. Pukhraj P. W. in her statement at the trial. She is also staying in the house of the cousin of Fayyaz‑ud‑Din (P. W. 4), which fact is admitted by her, Noor Ilahi P. W. admitted that he and Ikram‑ul‑Haq appellant and five others had contested Municipal Election from Ward No. 28 for four seats. This shows that he is by no means independent and disinterested. Their version regarding the incident is to the following effects:----
That on the 13th of April 1963, at about 2 p.m., when Muzaffar Khan deceased was proceeding towards his house in gall No. 23, Ch. Zafar‑ul‑Haq and his two sons namely, Ikram‑ul‑Haq and Nawaz‑ul‑Haq came from gali No. 1 and when they reached the crossing of gall Nos. 1 and 23, Ch. Zafar‑ul‑Haq shouted a lalkara at Muzaffar Khan deceased that he would teach him a lesson for the marriage, that on hearing the lalkara, Muzaffar deceased turned round that Ch. Zafar‑ul‑Haq and Nawaz‑ul‑Haq. exhorted Ikram‑ul‑Haq appellant to kill Muzaffar deceased, upon which Ikram‑ul‑Haq appellant started firing with a pistol at Muzaffar Khan deceased, which hit him in his chest, abdomen, shoulder, arm and head and he fell down on the ground and died, that thereafter Mst. Pukhraj P. W. reached the spot running and entreated the assailants not to be cruel, upon which Ch. Zafar‑ul‑Haq called her a bitch and gave her three or four stick blows. It was also stated that on receiving the first shot the deceased simply moved aside a pace or so, that when the second shot hit him on the left chest in front, he stood erect in the same position and after that 3rd shot hit the deceased on his right chest in front and he somewhat bent down and in the same condition he received the 4th shot on the right side of his forehead and it was then that the deceased fell down. The above version is neither corroborated by the medical evidence on the record, nor it is natural. According to the evidence of the eye‑witnesses no injury was caused to the deceased by a blunt weapon, but according to the doctor the deceased had one lacerated wound 1 " x " x bone deep over the top of the skull, slightly towards the back and a superficial contusion near the outer side the right nipple, " x ". The doctor was quite clear that injury No. 5 could not be the result of a fall, and that injury No. 6 was the result of a definite injury and not as a consequence of other injuries, In other words they were caused by two separate blows with a blunt weapon. The eye‑witnesses, on the other hand, with one voice, stated that no injury was caused to the deceased with a blunt weapon. The learned counsel for the State, however, contended that the doctor was wrong in saying that injury No. 5 could not have been caused as a result of a fall on hard ground. We find no force in this contention because in order to receive that injury the deceased would have had to take a flying jump in the air and land on his head or dive into an empty swimming pool. Further according to Noor Ilahi P. W. the blows given by Ch. Zafar‑ul‑Haq appellant to Mst. Pukhraj P. W. were neither pokes nor thrusts, but were given in a normal way. Mst. Pukhraj P. W. also stated that she was given stick blows by lifting the stick and not by giving a push. This is contrary to the evidence of the Lady Doctor Razia Khan P. W., who examined Mst. Pukhraj P. W. and found that injury No. 4, which is a contusion 1 " x 1 " on the left side of the chest on its back, was caused by a thrust of a stick. Fazal Ilahi P. W. stated that after the deceased had received a shot on the right side of his chest, he leaned backwards and then received a shot on the right side of his forehead and after that he fell down. The doctor, who performed post‑mortem examination of the dead body of the deceased, did not find any pistol shot injury on the forehead of the deceased. Further the version of the eye‑witnesses that the deceased received four pistol shot wounds and then fell down is not possible due to the nature of the injuries as disclosed by the doctor. The doctor found a lacerated wound on the interior surface " in diameter (both in the anterior wall of pericardium and interior wall of the heart), through and through the wall. He also found a lacerated wound through and through posterior wall " in diameter. It was not possible for the deceased to have remained standing after he had received those injuries. Therefore, the version given by the eye‑witnesses is not plausible. The evidence of all the eye‑witnesses also suggests that the pistol shots were fired at the deceased by Ikram‑ul‑Haq appellant from some distance. According to the site plan Exh. P. E/4 where both the points are given we find that the distance between the two points is 2". The scale of the plan is 30 feet to an inch, which means that the difference between the two points was 15 feet. The doctor, on the other hand, found that around injuries Nos. 1, 2 and 3, which were caused by pistol shots, there was scorching present. He gave his opinion that the shots were fired from a distance of about 6 feet or nearer. In the book entitled The Indentifica tion of Firearms and Forensic Ballistics by Major Sir Gerald Burrard, Revised Edition at page 58, it is mentioned that with a revolver or pistol scorching may occur upto two to three inches. This would mean that the shots were fired from a distance of about two to three inches. The doctor when he stated that the shots were fired from a distance of about 6 feet, was absolutely wrong. In any case he is not a Ballistic Expert and, therefore, his opinion cannot be accepted as against the opinion given by Major Sir Gerald Burrard. Thus there is no corroboration of the prosecution version.
15. Mst. Pukhraj P. W. before the police did not state that Fazal Ilahi P. W. and Abdul Haq (not examined) had reached the spot. This shows that Fazal Ilahi P. W. did not witness the occurrence. Mst. Pukhraj P. W. also stated that she had heard the alarm raised by small children and as a result thereof she came out of her deohri and ran in the direction of the scene of offence. None of the other eye‑witnesses has mentioned the presence of the children at that time. From the perusal of the site plans we find that the several other houses intervene between the house of Mst. Pukhraj and the place of occurrence and yet it is strange that nobody from any one of those houses came out and saw the occurrence.
16. Lastly from the perusal of all the site plans produced in this case we also find that the so‑called eye‑witnesses did not witness the occurrence. Malik Barkat Ullah, Draftsman (P. W. 17) stated that on the 30th of April 1963, he prepared a site plan Exh. P. E. and its copies Exh. P. E/1 and P. E/2 at the instance of the police, and that the witnesses, who were present, neither pointed out the place from where the accused had fired the shots nor gave the numbers of the culprits. Therefore, in the plan the point from where Ikram‑ul‑Haq appellant is alleged to have fired the shots and the points from where the witnesses are said to have witnessed the occurrence are not shown. The Draftsman also stated that Noor Ilahi P. W. asked him to supply him a copy of the aforementioned site plan omitting certain points, which according to Noor Ilahi P. W. were not necessary, and that he (the Draftsman) on the 28th of June 1963, supplied him with the copies Exh. P. E/5 and P. E/6 in duplicate of the original site plan. In these copies also the place from where the victim was shot at and the places from where the witnesses saw the occurrence have not been shown. The Draftsman further stated that on the 25th of February 1964, he prepared site plan Exh. P. E/3 and P. E/4 in duplicate at the instance of Noor Ilahi P. W. and at the pointing out of the eye‑witnesses. In those plans, however, all the points have been shown. From the above it is clear that on the 30th of April 1963, the witnesses were not sure as to the various points and that is why no such points were pointed out by them. The fact that they showed those points about 10 months later, i.e. on the 25th of February 1964, shows that an attempt had been made by the eye‑witnesses to concoct or fabricate evidence and as such no reliance can be placed on their veracity. We are further convinced in this view by the statement made by the Draftsman, which is to the effect that the positions shown to him by the witnesses, when he prepared the site plans Exhs. P: E/3 and P. E/4, were different from the positions and the places shown to him by the witnesses earlier. There is no reason for disbelieving his testimony because he is not interested in either party. Thus the presence of the aforementioned witnesses at the relevant time has become doubtful. Taking all the peculiar features into consideration we find that it will not be safe to place reliance on the testimony of such eye‑witnesses. We, accord ingly, accept the appeal, set aside the convictions and sentences of the appellants and acquit them. The sentence of death awarded to Ikram‑ul‑Haq appellant is, therefore, not confirmed, Ikram‑ul- Haq appellant should be released forthwith, if not wanted in any other case. The fine imposed on Ch. Zafar‑ul‑Haq appellant, if already paid, be refunded to him.
17. Since the appeal has been accepted the revision for enhancement of sentence of Ch. Zafar‑ul‑Huq appellant is rejected.
18. Before parting with the judgment we would like to point out that on the 29th of April 1966, the learned Special Pubic Prosecutor made a statement that he had given up some witnesses except Sub‑Inspector Ali Muhammad, who was already mentioned above, recorded the first information report in this case. The learned Additional Sessions Judge without passing any order proceeded to record the statement of the Sub‑Inspector c as a Court witness and not as a prosecution witness and thus caused a prejudice to the appellants because he allowed the complainant to cross‑examine his own witness without his being declared hostile. This procedure, in our view, was highly improper. We also cannot help remarking that the learned Additional Sessions Judge approached the case in an entirely illegal manner in so far as he considered it appropriate to discuss the defence evidence first and then the prosecution evidence. This is, to say the least, a topsy‑turvey way of dealing with a criminal case. He should have first discussed the prosecution evidence and come to an independent finding on the truth or falsity of the story related by them and should then have examined the statements of the appellants and their defence evidence and criticised them in the light of the circumstances brought on the record. After having weighed the prosecution evidence and the statement of the appellants and the defence witnesses, he would then have been justified in formulating his conclusion as to the guilt or innocence of the appellants.
K.B.A. Appeal accepted.
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