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Jale Petition for S. L. A. No. 12-R of 1971

Criminal Appeals Nos. 37 and 38 of 1978 and Jail Petition for Special Leave to Appeal No. 12-R of 1971, decided on 4th July, 1981.

(On appeal from the judgment of the Lahore High Court, Lahore dated the 16th December, 1.978 in Criminal Appeal No. 1115 of 1976/Murdae

Reference No. 21 of 1976).

Ss. 302/148, 307/148 & 149-[Murder-case -Appreciation of evidence-Large body of armed persons suddenly arriving at scene of occurrence and starting firing indiscriminately-Victims in circumstances must have fled in terror and first informant could not possibly have become aware of details of incident as tried to be given out-Not possible in circumstances to believe first informant having identified accused participating in crime-Participation of each individual accused in transaction hence not safely established-Prosecu tion case from its very outset riddled with doubts-Firsts information report appearing to have been recorded after investigation-Not possible to say whether first information report reflected informant's version or that of his son-Medical evidence inconsistent with ocular account of incident-Thirteen persons allegedly resorting to indiscriminate firing at 13 to 15 persons including many females from a close range but only one person in un read with pellets-Second person allegedly injured by pellets at a different place but strangely all pellets hitting 7 or 8 p6rsons causing only contused wounds and none of them entering body of any of them-No blood recovered from cots where witnesses allegedly sat-Parties on inimical terms and no corroboration forthcoming of testimony of interested witnesses-Case, held, doubtful and acceptance of appeals consistent with rule of safe dispensation of criminal justice.-[Evidence]...

Ataullah Sajjad, Senior Advocate, Supreme Court instructed by Merajuddin Chauarhary, Advocate-on-Record (absent) for Appellant (in Cr. A. No. 3'7 of 1978).

Aftab Farrukh, Advocate Supreme Court, instructed by Masud Akhtar, Advocate-on-Record (absent) for Appellants (in Cr. A. No. 38 of 1978 and for Petitioner in J. P. No. 12-R of 1971.

M. Kowkab Igbal, Advocate Supreme Court for the State (in all Petitions).

Date of hearing : 4th July 1981.

This judgment will dispose of two appeals by leave to appeal in a criminal matter, viz., Criminal Appeal No. 37 of 1978, Filed by Basharat Ali Shah, son of Syed Gulab Ali Shah, and Criminal Appeal No. 38 of 1978, filed by (1) Khushi Asif, son of Asif Masih, who also filed a petition through Jail (Jail Petition for Special Leave to Appeal No. 12-R of 1971), (2) Qeemti Yusuf, (3) Sardar Yusuf, sons of Yusuf Mash, and (4) Rahmat Masih, son of Inayat Masih. against the same judgment passed by a Division Bench of the Lahore High Court, Lahore on 18-12-1978, whereby Criminal Appeal No. 1118 of 1978 (heard and disposed of with Murder Reference No. 21 of 1978), against the order of the Additional Sessions Judge, Lyallpur (Faisalabad), passed on 26-11-1975, convicting the appellants, above-named, under sections 302/148, 307/148 and 148, P. P. C., was upheld and the sentences awarded to each of them was maintained.

According to the prosecution case as disclosed in the First Information Report, the facts briefly stated are that on 24-8-1973 at about 8-00 p.m., Bahadur, complainant (P. W. 18) alongwith Mst. Hameeda, Yusuf, son of Salamat, Mst: Bibi, widow of Boota, Yusuf, son of Bahadur (given up as unnecessary), Mst. Mariam (P. W. 20), Mst. Rani (P. W. 21), Mst. Bashiran (P. W. 22), Younis (P. W. 19), Sorakhi (P. W. 17), Javed Gul and Parvez (given up as won over), Anwar (P. W. 18) and Mst. Irshad (P. W. 24) were sitting on cots in front of his house when a green-colored car Bearing No. 2152 and belonging to the Government of the Punjab suddenly arrived on the scene from Eid Gab Road and stopped near the Church. Salamat Ali Shah alias Shammi Shah (not challenged by the police), his brother Basharat Ali Shah, sons of Gulab Shah. Khushi, son of Asif, Bashir, Rehmat accused and Shamim Ahmad Khan (not challaned by the Police) came out of the said car and went towards the houses of Qeemti Yusuf (accused) where Sardar, son of Yusuf Masih, Azmat Parvez, son of Boota, Mumtaz Ahmed alias Kundal, son of Khushia, James, Sillu, laved alias Jhumka and Qeemti Yusuf (accused)were already present. Sharnim Ahmed Khan asked the others to fire so many shots that they should remember for ever "in logon to it ni golian maro keh in then sari umar yad repay". On this Basharat Ali Shah (appellant in Criminal Appeal 37/1918) who was armed with a step-gun, Salamat Ali Shah who was armed with a shot-gun and the rest who were armed with carbins and .12 bore revolvers started indiscriminate firing as a result of which Salamat Masih, son of Boota died on the spot and all the rest of the complainant party were injured. Some other persons are also stated to have injured. The culprits then retreated while firing towards the houses of Qeemti Yusuf. They then pursued Mst. Sardaran, widow of Raja, who ran for her life but she fell down near the house of David, son of Boota where she was fired upon by Qeemti Yusuf, Sardar Yusuf and Basharat Ali Shah and killed. Snlamat Ali Shah and Khushi were allegedly the first who had fired at Salamat Masih, deceased. The dead bodies were taken to the hospital while the injured themselves went to the hospital. Bahadur (P. W. 18) who was luckily not hit went to Police Station, Gulberg and reported the matter there at 9-45 p.m. on the basis of which the case was registered.

As to the motive for the crime, it is alleged in the First Information Report that the parties were on inimical terms. The said accused party had injured the members of the complainant party many times. Cases were pending against Qeemti Yusuf and others who were helped by Shamim Ahmad Khan. A day earlier to the occurrence, a case was registered at Police Station, Gulberg against Basharat Ali Shah under section 307, P. P. C., on the report of the Bahadur (complainant) but the accused were saved by the intervention of Shamim Ahmad Khan. A wine bottle and glass were recovered from Basharat Ali Shah. The residents of Basti Asian felt aggrieved by the conduct of Shamim Ahmad Khan, who was during those days the Deputy Speaker of the Provincial Assembly and on account of which the accused nourished a grudge against the complainant party and led them to mounting the assault on the complainant party.

The case was registered as already stated at Police Station, Gulberg which was situate 213 furlongs from the spot, the same day at 9-46 p.m. under section 302/307/148/149, P. P. C. Thirteen accused were named in the First Information Report which was recorded by Manzur Ahmad, S. H. O., on the written complaint of Bahadur.

After recording the First Information Report, Manzur Ahmad, S. H. O., reached the spot where he prepared the injury statement Exh. P. K. 1 and the inquest report Exh. P. KK of the dead body of Mst. Sardaran and sent it to the mortuary for post-mortem examination. He collected 47 crime empties of '12 bore, eight empty bullets of .32 bore and two empty bullets of .38 bore from the spot and made them into a sealed parcel vide memo. Exh. P. p. He arrested Sardar Yusuf, Azmat Parvez and Basharat Ali Shah on the 28th August, 1973. Attaullah Khan, Sub-Inspector C. I. A. Staff, partly investigated this case. On the 5th September, 1973, Sardar Yusuf was questioned by and from his house he got recovered unlicensed .12 bore pistol (Exh. P. 8) alongwith three cartridge (Exh. P. 7/1-3) and a canvas bag. The pistol was made into a sealed parcel vide memo. Exh. P. G. On the 1st September, 1973, Qeemti Yusuf, Khushi Asif, Rehfnat Masih, Mumtaz Ahmad alias Kundal, Javid and James were arrested by Muhammad Sadiq, Inspector C. I. A. Staff. On the 8th S:ptember, 1973, Javid alias Jhumka, while in custody, led to the recovery of unlicensed revolver (Exb. P. 9 from near the gate of the Agriculture University, Lyallpur (Faisalabad) which was made into a sealed parcel vide memo. Exh. P. 8. This recovery was also effected by Attaullah Khan, Sub-Inspector. Bashir and Sillu accused could not be arrested and were declared proclaimed offenders and are still fugitives from justice. Surprisingly, however, despite the motive rolls assigned to Shamim Ahmad Khan and Salamat Ali, they were not challaned having been declared innocent by the police.

The injured persons, namely, Mst. Rani, Yunus, Javed Gul, Parvez Masih, Gorakbi, Mst. Mariam, Mst. Bibi, Mst. Hameeda, Mst. Bashiran and Irshad were examined by Dr. Gulsher Khan, Medical Officer, District Headquarters Hospital. Lyallpur (Faisalabad) on the day of the occurrence, namely, 24th August, 1973, who merely found contusions on their persons.

On the same, day the same doctor also performed post-mortem examina tion on the dead bodies of Salamat Masih and Mst-Sardaran and found that they had died as a result of pellet injuries fires) from the shot-guns.

After completion of the usual investigation, the police challaned the nine arrested accused, namely, Basharat Ali, Khushi Asif, Rehmat Masih, Sardar Yusuf, Qeemti Yusuf, Azmat Parvez, Mumtaz alias Khundal, Javid alias Jhumka and James ; two out of the thirteen persons named in the First Information Report being fugitives from justice, while the remaining two have been declared innocent by the Police. All of them were committed for trial by the Illaqa Magistrate to the Court of Additional Sessions Judge, Lyallpur (Faisalabad). By his judgment dated 28-11-1978, the Additional Sessions Judge found that the offence of murder of Salamat, deceased, was made out against Basharat Ali Shah, Khushi Asif, Rehmat Masih, Sardar Yusuf, Qeemti Yusuf, Azmat Parvez and Mumtaz Ahmad alias Kundal. Therefore convicted all those accused under section 302/148, P. P. C. for ae murder of Salamat, deceased. Khushi Asif was awarded the maximum penalty of death as he was considered to have caused the fatal injury to the deceased, Salamat. Basharat Ali Shah, Qeemti Yusuf, Sardar Yusuf, Rehmat Masih, Azmat Parvez, Mumtaz Ahmad alias Khundal, were sentenced to imprisonment for life. Additionally Basharat Ali Shah, Qeemti Yusuf, Sardar Yusuf, Rehmat Masib, Azmat Parvez, Mumtaz Ahmad alias Kundal and Khushi Asif, were also convicted under section 307/148, P. P. C. and sentenced to 3 years R. I. on each count for causing injuries to Sorakhi (P. W. 17), Yunus (P. W. 18), Mst. Mariam (P. W. 20), Mst. Rant (P. W. 21), Mst. Irshad (P. W. 24), and Mst. Bashiran (P. W. 22) This . imprisonment was to run concurrently with the sentences mentioned already. Sentence of fine were also imposed. However, all the accused were acquitted from the charge of murder of Mst. Sardaran.

All the convicts went up in appeal to the High Court against the order of their convictions and sentences and the death sentence was also referred to the High Court for confirmation. The Division Bench of the High Court by its judgment dated the 18th December, 1978, accepted the appeal of Azmat Parvez and acquitted him. The appeal of the remaining six accused was, however, dismissed and the death sentence confirmed.

Dissatisfied with the judgment of the High Court, Basharat Ali filed a separate petition for leave (Petition for Special Leave to Appeal No. 11/ 1977) while Khushi Asif, Qeemti Yusuf, Sardar Yusuf and Rehmat Masih, jointly filed a separate leave petition (Petition for Special Leave to Appeal No. 13/1977); however, Mumtaz did not file any Petition at all. The said two petitions were heard together on the 12th March, 1978 and leave to appeal was granted in both the cases, to reappraise the evidence. Hence these two appeals.

Shaikh Ata Ullah Sajjad and Mr. Aftab Farrukh, learned counsel for the appellants in the two appeals, have taken us through the relevant part of the record to show that the case against the appellants is doubtful. Mr. Kowkab Iqbal on behalf of the State has been heard in reply.

After bestowing our earnest consideration to all aspects of the matter, we are satisfied that it is not possible to maintain the judgment of the Courts below and that these appeals must be allowed. Our reasons for coming to this conclusion are briefly as follows.

The evidence shows that a large body of armed persons had suddenly arrived at the scene of occurrence and started firing indiscriminately with the result that the victims must have fled in terror. The first informant A Bahadur (P. W. 18) cold not possibly in these circumstances have become aware of the details of the incident as he tried to give out later. In the State of terror and panic that was created it is impossible to believe that he could have united the accused who participated in the crime and we are convinced, after review of the evidence, that the participation of each individual accused in the transaction has not safely been established. It is significant that the Sessions Judge did not rely on the prosecution evidence so far as James and Javed were concerned and the High Court did not rely on it so far as Azmat Parvez was concerned. Even the Police did not rely on it so far as Salamat Ali and Shamim were concerned. In these circumstances it will not be safe to rely upon the same evidence in so far as the appellants are concerned.

In fact the prosecution case is, from its very outset, riddled with doubts. The manner in which the First Information Report has been lodged for instance reflects on its authority. F room the statements of Bahadu B (P. W. 16) and Manzur Ahmad S. H. O. (P. W. 8), an impression is clear created that the said First Information Report was recorded after investigation C had been carried out on the spot by the S. H. O. (P. W.) Bahadur has admitted in his written statement that his oral version in the police station was not recorded by the S. H. O. and that he therefore came out of the police station and got his statement recorded through his son George in the nearby hotel and submitted the written version to the S. H. O. He has also admitted that he is illiterate but can only sign but strangely enough on the First Information Report his thumb-impression was taken by the S. H. O. despite the fact that he could sign and had given a report in writing. The above statement of Bahadur therefore clearly belies the statemen p of the S. H. O. that Bahadur had straightaway brought the written report to the police station. In the circumstances it cannot be said whether the First Information Report is Bahadur's version of the incident or that of his son George.

We also observe that the medical evidence is inconsistent With the ocular evidence of the incident. According to the version of the prosecute To 13 persons recorded to indiscriminate firing at 13 to 15 persons including many females from a close range but only one person was injured wit E pellets. The second person according to the First Information Report was injured by pellets at a different place. But it is strange that all the pellets which hit 7 or 8 persons caused only contused wounds and none of them entered the body of any of them from which it could have been recovered.

The contused wounds on the ten injured persons most of whom have appeared as P. Ws. were either caused by blunt means or pellets. Now if these had been caused with blunt means then all the P. Ws. stand belied in their version as no blunt means were used according to them. If on the other hand those were the result of fire-arms then again this belies the P. Ws. for the. P. Ws. were all fired at by fire-arms from a very close range and the pellets in that case could not cause contused wounds as they should have penetrated the bodies of the injured persons.

We also notice that no blood was recovered from the posts where the witnesses were allegedly sitting which again casts doubt as to the veracity of their statements with regard to the places where they were sitting when the attack began. We further consider that in view of the enmity between the parties, the was a case where the version of the interested witnesses should have been 3 corroborated by some independent evidence but none is available. So for as Bahadur Ali Shah (appellant in Criminal Appeal No. 37 of 1978) i concerned he was alleged to have been armed with a sten-gun. Neither was any step-gun recovered nor did his alleged victim Mst. Sardaran bear a step-gun wound. The prosecution witnesses having later on becoming realizing that no step-gun had been used in the commission of the offence tried to make their stand consistent by saying that the appellant was holding a gun which resembled a sten-gun. This explanation found favour with the learned Judges of the High Court. We do not think such an explanation was credible and consider that the learned Judges were not justified in holding that the witnesses had mistaken the rifle for a step-gun and then proceed to accept this explanation. In any case the matter was doubtful.

In this a state of general doubt, we feel it would be more consistent with the rule of safe administration of criminal justice to accept both the appeals and to acquit all the appellants and order that they be set at liberty not wanted in any other case.

Appeals accepted.

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