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Criminal Appeal No. 652 and Murder Reference No. 181 of 1976, decided on 30th July 1978.

---S. 302 read with S. 34-Benefit of doubt-Long-standing enmity existing between parties - Testimony of eye-witnesses closely related to deceased not corroborated by independent witnesses ---Identity of injured P. W. being doubtful his evidence not relied upon--- Time of occurrence not in conformity with medical report ---Accused given benefit of doubt and acquitted in circumstances. [Benefit of doubt].

Ch. Nazir Ahmad Khan, Khan Ziaud Din Khan and Ch. Abdur Rahma

Cheema for Appellants.

Malik Abdul Hamid for the State.

Dates of hearing : 12th and 13th February 1978.

---The appellants Muhammad Naeem (aged 24 year. and Muhammad Amin (aged 35 years) were tried alongwith four other namely, Shah Muhammad, Abdul Hafeez, Muhammad Shafique and Abdul Karim, on the charges of causing the death of Sanaullah deceased an committing murderous assault on Ghulam Yasin. The learned Addition, Sessions Judge acquitted the four co-accused by his judgment date 24-5-1976 but he found the appellants guilty, convicted them of offence under section 302/34, P. P. C. and sentenced them to death. He also directed them to pay fines of Rs. 5,000 each or in default to suffer further rigorous imprisonment for one year.

2. The appellants have preferred a joint appeal against their conviction and sentences while the learned Additional Sessions Judge has made a reference under section 374 of the Criminal Procedure Code for the confirma tion of the sentences of death imposed upon them. This judgment will dispose of both these matters.

3. Both parties are residents of Chak No. 108/J. B. within the limits of Police Station, Chak Jhumra. It was alleged by the prosecution that 12/13 years ago, Shah Muhammad, father of Muhammad Naeem appellant; his son Abdul Hafeez, his brother's son Muhammad Amin appellant and Abdul Karim (acquitted co-accused) were prosecuted under section 307, P. P. C. for committing murderous assault on Fazal Muhammad father of the deceased and some of his relations but they were acquitted. Again, 15 'months prior to the present occurrence cross-cases under section 307, P. P. C. were registered against Shah Muhammad and his sons on the one side and against the complainant party on the other but on account of a compromise both cases were subsequently discharged. Nevertheless, the parties continued to nourish grudges against each other.

4. On the day of occurrence, that is, on 10-11-1973, at about sunset time a truck loaded with building material for the construction of a Primary Girls School came to their village. Muhammad Ikram (P. W. .10; his brother Sana Ullah deceased and Ghulam Yasin (P. W. 11), a member of the School Committee' arrived at the site of construction to arrange for the unloading of the truck. Abdul Karim and Muhammad Shafique also connected with the School Committee' were already present there and they wanted material to be stored with them but Sana Ullah deceased insisted that it should be kept at the house of one Maulvi Ali Muhammad near the proposed site of School. This controversy led to an altercation. Muhammad Shafique and Abdul Karim then left issuing some threats to the opposite-party. After some time Muhammad Ikram (P. W. 10), Ghulam Yasin (P. W. 11) and the deceased also left for the house. When they reached near the house of Muhammad Sharif (P. W. 12), both appellants bearing .12 bore guns and alongwith some others armed with dangs surprised them from the front and raised a lalkara that they would not be spared. Sana Ullah deceased in a bid, to save his life turned round but the appellants simultaneously fired from their guns hitting him on his back. Muhammad Naeem appellant fired a second shot aiming at Muhammad Ikram (P. W. 10) but it did not hit him. The companions of the appellant gave dang blows to Ghulam Yasin (P. W. 11). Sana Ullah died at the spot. Muhammad Sharif (P. W. 12), Muhammad Siddiq (P. W. 13) and one Muhammad Ajwar also saw the occurrence.

5. Muhammad Ikram (P. W. 10) reported the matter at Police Station, Chak Jhumra which was 4 miles from the place of occurrence on the same evening at 7-15 p.m. His statement (Exh. P. A.) was recorded by Sub- Inspector Abdul Majid (P. W. 14) who reached the place of occurrence the same night. He prepared the inquest report (Exh. P. L.) at 9-30 p.m. and noticed that blood was oozing out of the injuries. He despatched the dead body to the mortuary. As the doctor at Chak Jhumra was not available, the dead body was carried to Lyallpur. He arrested the assailants on 15-11-1973. He recovered a .12 bore gun P-1 and its licence P-2 from Muhammad Amin appellant vide memo. Exh. P. B.

6. Dr. Bashir Ahmad Kahloon (P. W. 1) conducted the post-mortem examination on the dead body of Sana Ullah on 11-11-1973 at 3 p.m. and found eight gunshot wounds, all 1/3" x 1/3" in size. Of these four were on the back of the left shoulder, three on the back of the right shoulder and one on the left shoulder. He opined that the death had occurred within half an hour of the receipt of injuries. This doctor had also earlier in the day, at 1-15 p.m. examined one Muhammad Munir son of Karam Din and found 5 contusions, one abrasion and 4 swellings on various parts of his body. The injuries were found to be simple caused with blunt weapon. Copy of the medico-legal report is Exh. P. G.

7. The appellant pleaded not guilty to the charges made against them and attributed false implication due to enmity. They led no evidence in defence.

8. It was contended by the learned counsel for the appellants that as the testimony of eye-witnesses against four of the co-accused was found to .be unreliable, the same evidence could not be relied upon for the purpose of convicting the appellants. The eye-witnesses were admittedly interested and inimical and there was no confirmatory circumstance connecting the appellants with the crime. It was further submitted that there were inherent defects in the prosecution case. The occurrence did not take place at the time and manner as alleged and material witnesses had been withheld by the prosecution which cast a serious doubt on the entire case. The presence of Muhammad Ikram (P. W. 10) was doubtful and Ghulam Yasin (P. W. 11) was a put up witness which further adversely reflected upon the investigation.

9. Admittedly, there was long-standing enmity between the complainant and the accused parties. It also appears from the record that all the material witnesses were closely related to the deceased. Similarly, except for Abdul Karim the appellant and the other persons cited in the F. I. R. as assailant were closely related inter se. Thus Muhammad Ikram (P. W. 10) was the real brother of Sana Ullah deceased and Fazal Muhammad (P. W. 4) was their father. Muhammad Sharif (P. W. 12) and Nazir (P. V. 9) were the sons of Nizam Din who was a brother of Qutab Din grandfather of Fazal Muhammad (P. W. 4). Muhammad Siddique (P. W. 13) was the son of Abdullah, brother of Nizam Din. Ghulam Yasin (P. W. 11) was married to the sister of Muhammad Siddique (P. W. 13) and was also his cousin. On the other side Muhammad Naeem, appellant Shafiq and Hafeez (acquitted co-accused) were brothers and sons of Shah Muhammad while Muhammad Amin, appellant was the son of Ata Muhammad, a brother of Shah Muhammad.

10. In the year 1960, a case under sections 307, 148/149 of the Pakistan Penal Code was registered at the instance of one Karam Din, a collateral of Sana Ullah deceased, against Shah Muhammad, his son Muhammad Hafiz, his brother's son Muhammad Ameen appellant, Abdul Karim son of Ludan and some others. Nazir (P. W. 9) and Muhammad Siddique (P. W. 13) were named as eye-witnesses in that case. Again, in the year 1972, cross-cases under sections-307/149, P. P. C. were got registered by both the parties against each other. Muhammad Ikram (P. W. 10), Sana Ullah deceased and two others were implicated on the one side while Shah Muhammad his brother Ata Muhammad and his sons Muhammad Hafeez and Muhammad Ameen appellant were involved from the other side. Both cases were, discharged due to some compromise. It was the case of the prosecution itself that this compromise was merely a sham transaction and had been used as an artifice to get rid of the criminal cases.

11. The learned Sessions Judge did not place reliance on the testimony of the eye-witnesses as against majority of the accused, namely Shah Muhammad, Shafique, Hafeez and Abdul Karim co-accused and acquitted them. Nevertheless on the same evidence he chose to convict the appellants without giving a finding that there were any additional circumstances pointing towards the guilt of the appellants.

12. According to prosecution the occurrence took place at Maghrib' prayer time near a mosque in a chowk of a thickly populated village. Muhammad Ikram (P. W. 10) admitted that the shop of one Dr. Jameel was located in the centre of the chowk although he claimed that it was closed at that time. However, that may be, the place of occurrence was admittedly surrounded by residential house. It is, therefore, difficult to accept that the occurrence was witnessed only by close relatives of the deceased. The failure of the prosecution to produce any independent witness from the vicinity in support of its version reflects unfavourably on its case.

13. Ghulam Yasin (P. W. 11) claimed to have received injuries and examined by the doctor. But the medical report (Exh. P. G.) relied upon by the prosecution in this behalf was a report in respect of one Muhammad Munir son of Karam Din. It was contended by the learned State Counsel that wrong particulars were entered in the report inadvertently. Dr. Bashic Ahmad (P. W. 1) examined Ghulam Yasin (P. W. 11) in Court and on the basis of identification marks mentioned in the report (Exh. P. G.) he stated that it was Ghulam Yasin who was examined by him. But he was not sure whether the person he examined was Ghulam Yasin (P. W. 11) because he stated that probably' Ghulam Yasin was the person whom he had examined. However, this witness stated that he entered the same name which was given to him by the person examined by him. If that is accepted the question arises as to why Ghulam Yasin was hiding his identity by giving wrong particulars. Was it with a view to avoid appearing as a prosecution witness or for some other motive. It may not be easy to guess. Whatever the reason may be, no reliance can be placed on the testimony of a person who could go to extent of giving wrong particulars to hide his identity. If, in fact, the particulars of Ghulam Yasin (P. W. 11) were wrongly entered in the report, the prosecution should have got it corrected. The medical report was duly received by the police on 11th November 1973 under signature but the prosecution failed to have it rectified or clarified. No reliance can, therefore, be placed on such evidence.

14. There is an indication on the record that the occurrence took place much later than stated by the prosecution. Sub-Inspector Abdul Majeed (P. W. 14) who prepared the inquest report at 9-30 p. m. mentioned therein that blood was still oozing out of the injury of the deceased. This shows that the deceased had not been dead for long before the preparation of the inquest report. If the deceased had died within an hour of the preparation of the said report then the recitals in the medical report with regard to the time of occurrence and the time when it was reported at the Police Station becomes doubtful. Similarly the claim of Muhammad Siddique (P. W. 13) that at the relevant time he was going to the mosque to offer his maghrad prayers gets belied.

15. The above being the state of evidence it will be most unsafe to rely upon it for convicting the appellants in the absence of any confirmation circumstance. Therefore, it is not possible for us to support the conviction of the appellants as recorded by the learned Additional Sessions Judge. Accordingly we set aside their conviction and sentences and acquit them o the charges against them. The appellants shall be set at liberty forthwith if not required in any other case.

16. The appeal and the reference are disposed of accordingly.

Order accordingly.

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