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Criminal Appeal No. 578 and Murder Reference No.182 of 1979, decided on 6th June, 1982.

--Ss. 302/34 & 452--Evidence Act (I of 1872), S.9--Murder--Trial Judge believing eye-witnesses and relying on their identification of accused but some important aspects of case regarding testimony of eye-witnesses qua identification escaping attention of trial Judge--Identifying witnesses not appearing to have seen accused at time of occurrence--One of identifying witnesses lodging first information report but omitting to name accused- Another prosecution witness who was not produced when called in to identify accused stating that he was detained by police--Identification parade, held, of little value and prosecution failing to establish case against accused beyond doubt--Conviction and sentence set aside.- [Identification].

Kh. Sultan Ahmad, Aftab Farrukh, Amjad Ahad Sh., Ijaz Hussain Batalvi and M.A. Zafar for Appellants.

Malik Muhammad Yousaf for the State.

Dates of hearing: 31st May; 1st, 5th and 6th June, 1982.

-- By his judgment of the 12th April, 1979, the learned Sessions Judge, Sialkot, convicted Muhammad Humayun son of Muhammad Anwar aged 26 years and Muhammad lqbal son of Mehraj Din, aged 27 years, Kashmiris by caste, residents of Sialkot City, under section 302 read with section 34 of the Pakistan Penal Code for committing in furtherence of their common intention murder of 30 years old Muhammad Akhtar in the factory known as M. Sharif and Sons (of which the deceased was a partner), situated on Abbot Road in Sialkot City, on the 4th December, 1977 at about 7-15 a.m. and sentenced Muhammad Humayun to death and Muhammad lqbal to imprisonment for life in addition to fine of Rs.5,000 and in default of payment thereof to one year's rigorous imprisonment each and directed each of them to pay compensation amounting to Rs.5,000 to the heirs of the deceased or in case of failure to pay the same to suffer six months' rigorous imprisonment. He further convicted Muhammad Humayun under section 452 of the Pakistan Penal Code for having committed house trespass into the factory after having made preparation for causing hurt and assault and sentenced him to two years' rigorous imprisonment and a fine of Rs.500 or in default of payment of the same to additional rigorous imprisonment for one month. The convicts have approached this Court in separate appeals (Nos. 552 and 587 of 1979) and Murder Reference (No. 182 of 1979) for confirmation of death sentence given to Muhammad Humayun is also before us. The complainant, Muhammad Asghar, brother of the deceased has filed Revision Petition (No.634 of 1979) for enhancement of sentence of imprisonment for life awarded to Muhammad lqbal to death and for the increase in the amount of fine and compensation which the appellants have been ordered to pay. This judgment will dispose of the murder reference, appeals and revision petition.

2. Ejaz Ahmad, Mujahid, Muhammad Akram, Rana Sarfraz Ahmad, Tauqeer Ahmad, Muhammad Amin alias Mina, and Altaf Hussain, who were tried alongwith the appellants on the charge 'of having conspired with the appellants to commit murder of the deceased, were acquitted by the learned trial Judge.

3. The motive for doing away with the deceased, as spelled out from the first information report Exh. P.J., lodged by Muhammad Asghar, P.W.11, brother of the deceased, at 7-55 a.m., forty minutes after the alleged occurrence, at Police Station City Sialkot, which is hardly four furlongs away from the place of occurrence, was that Tauqeer Ahmad wanted to avoid repayment of loan of Rs.10,000 which he had borrowed from the deceased and which after some quarrel he had promised on the 1st December, 1977, to pay back to the deceased on the 4th December, 1977, or in the alternative to mortgage his house with the deceased. The grudge which Muhammad Humayun appellant might have against the deceased and his family members was sought to be explained in the prosecution evidence. Muhammad Akram P.W.10, brother of the deceased and Nisar uncle of Muhammad Humayun appellant, were accused in the case of murder of Master Abdul Rauf. Muhammad Akram became approver and Nisar was sentenced to death and executed in 1965. Again as disclosed by Muhammad Asghar, when he appeared in the witness-box, Mujahid Mahmood acquitted accused was aggrieved by the conduct of the deceased who was having illicit relation with Mujahid Mahmood's sister. The deceased was also suspected of getting implicated Muhammad Akram Butt, acqitted accused in the counterfeit currency case.

4. The occurrence as described in the first information report Exh.P.J. took place in the following manner. Muhammad Akhtar deceased went to his factory in the morning on the fateful day of the 4th December, 1977 as usual. At about 7-15 a.m. Muhammad Asghar P.W.11 and his brother Muhammad Asghar (Arshad Javed) P.W.12, heard in their house the sound of firing of two shots emanating from their nearby factory. They rushed towards the factory. They saw a man holding a carbine in his right hand came out of the factory and rushed towards a rickshaw which was parked on the road and facing towards Katchery Road and beside which was standing another person. Both these persons hurriedly seated themselves in the rickshaw which they drove away towards Katchery Road. Muhammad Asghar and Muhammad Arshad noticed the features of those persons and made mention of them while reporting the matter to the police. Muhammad Asghar and Muhammad Arshad dashed into the factory where they saw the deceased writhing in blood. Muhammad Asghar raised alarm. Muhammad Arshad and Muhammad Akram, etc., took the deceased to Allama lqbal Memorial Hospital, Sialkot, where he expired. Leaving Muhammad Arshad and Muhammad Akram with the dead body of the deceased Muhammad Asghar went to Police Station City Sialkot where he made the report, Exh.P.J., which was recorded by Zamir Ahmad, Sub-Inspector of Police and Station House Officer, P.W. 15 at 7-55 a.m.

5. Zamir Ahmad, P.W.15, arrested Muhammad lqbal appellant on the 10th January, 1978 and sent him to the District Jail, Sialkot, on the 11th January, 1978. His identification parade was held in Jail on the 21st January, 1978, under the supervision of Syed Abdul Khaliq Khawarzmi, Magistrate, Sialkot, P.W.6. Muhammad Asghar, P.W.11 and Muhammad Arshad P.W.12 identified him.

6. Muhammad Humayun appellant was arrested on the 8th August, 1978, by Amanat Khan, Assistant Sub-Inspector of Police, Police Station Hashat Nagri, Peshawar. He was brought by Habib Ahmad, Assistant Sub-Inspector of Police, P.W. 14, from Peshawar to Sialkot on the 13th August, 1978, and put into District Jail, Sialkot, Mr. Muhammad Musa Khan, Magistrate, Sialkot P.W.7, supervised his identification in District Jail, Sialkot, on the 20th August, 1978 Muhammad Asghar, P.W.11 and Muhammad Arshad correctly identified him.

7. Dr. Muhammad Aslam Butt, Medical Officer, Allama lqbal Memorial Hospital, Sialkot; conducted autopsy on the dead body of the deceased on the 4th December, 1977 at 2-00 p.m. and found the following injuries thereon:--

(i) 9 punctured wounds each about " x " over the front of upper chest, middle part in an area of about 2" x 2", the margins were inverted and blackening was present around the wounds.

(ii) 9 punctured wounds each about " x " over the left lower abdomen outer aspect in an area of about 2" x 2", the margins were inverted and blackening was present around the wounds.

(iii) Abrasion "x "over the front of lower lip middle aspect.

(iv) Abrasion 1" x " over the right thigh lower and front aspect.

(v) Abrasion "x "over the left thigh upper most and front aspect.

(vi) Abrasion "x " over the lower surface of penus.

(vii) Lacerated wound 1" x "over the inner aspect of right hand. There was blackening around the wound and the margins of the wound were inverted.

On dissection six small metallic round pieces were removed from the sub-scutanious tissues over the right scapula and seven similar pieces were removed from the subscutanious tissues over the right side of back of lower chest. Both the pleaurae and lungs alongwith heart and pericardium were punctured under injury No.1. There were multiple punctures in the peritoneum, small and large intestines under injury No.2. Right chest cavity contained about one pint of dark of coloured blood whereas the left chest cavity contained about two pints of blood. The chambers of the heart were empty. The stomach contained two ounces of gastric juice. Small intestines were empty and large intestines contained faecal matter and clotted blood. Bladder was healthy and empty.

All the injuries were ante-mortem. Injuries Nos. 1, 2 and 8 had been caused by fire-arm and other injuries with blunt weapon. Injuries Nos. 1 and 2 were grievous and dangerous to life whereas the rest of the injuries were simple in nature. Death in the opinion of the Medical Officer occurred due to shock and haemorrhage resulting from injuries 1 and 2 which were sufficient to cause death in the ordinary course of nature. Exh.P.B. is the copy of post-mortem examination report and Exhs.P.B./1 and P.B./2 are the diagramatic sketches of injuries.

8. The appellants denied point blank their involvement in the commission of crime. They did not admit that they had absconded after the occurrence. Muhammad Humayun stated that he had been taken into custody from his residence in Pehsawar. As regards his identification at the parade held in the District Jail, Sialkot, he explained that he had been known to Muhammad Asghar and Muhammad Arshad, P.Ws., since long and that they alongwith the police had accompanied him in the wagon during the journey from Peshawar to Sialkot. He added that Muhammad Asghar and Muhammad Arshad had been on friendly terms with Khuda Bakhsh, Assistant Superintendent of District Jial, Sialkot and they had got him assaulted in * jail on the 13th August, 1978, and also later on. He stated that he had raised an objection before the Magistrate before holding of the identification parade. He blamed Abdul Latif Ghumman, whom he described to be a friend of the complainant party and who was a prosecution witness in another murder case against him but had not been produced, in getting him falsely implicated in the case. According to him Abdul Latif Ghumman was on inimical terms with him as a case under section 307 of the Pakistan Penal Code registered at his instance had been pending against the said Abdul Latif Ghumman. He produced the copy of the first information report of the present case, Exh. D.X. and the report of the Ahmad and order of the Ilaqa Magistrate thereon. These documents are least helpful to him.

9. Muhammad lqbal appellant stated that he had been arrested by Zamir Ahmad, P.W.15 from his residential place at Lahore, about 20/22 days before the date of arrest officially shown by Zamir Ahmad. He added that Muhammad Asghar and Muhammad Arshad, P.Ws. and Muhammad Afzal of Nadirwalas Oil Merchant of Misri Shah, Lahore accompanied the police party which apprehended him. He said that he had been kept in wrongful confinement for 10/11 days in Police Station City Sialkot and for further 10/11 days in police lock-up of Police Station Sialkot Canton ment and that during that period he had been frequently shown to Muhammad Asghar and Muhammad Arshad, P.Ws. According to him Shabbir Ahmad, who had not been produced by the prosecution, had been made by the police to stay with him in the lock-up. He stated that -he had raised objection to that effect before the Magistrate at the time of identifi cation parade. He explained that he had been falsely implicated at the instance of Muhammad Afzal of Nadirwalas Oil Merchant of Misri Shah, Lahore, with whom Muhammad Asghar and Muhammad Arshad, P.Ws. had business and friendly relations since long. He further stated during the days of occurrence had been pursuing the murder case of his brother who was murdered by Nadirwalas, etc. According to him he had been pressurized to become approver in this case by Zamir Ahmad, P.W.15 and a sum of Rs.25,000 had been offered to him by the complainant party but he had refused to oblige them as he had known nothing about the case. Further, he stated that the complainant party had offered him Rs.50,000 for effecting a compromise in the murder case of his brother against Nadirwalas but he had turned down the offer. He produced copy of the judgment of the Magistrate, Sialkot, dated the 31st March, 1976, acquitting the deceased and others of the charge of theft of a Car Exh.P.Y., copy of the Writ Petition No. 5152 of 1978, filed by Shabbir Ahmad (given up prosecution witness) against the complainant party, police officiers and Assistant Superintendent Jail, Sialkot, Exh. D.Z., and copy of the order of the High Court, therefore, Exh.D.A.A.

10. The learned Sessions Judge held that the motive against Muhammad Humayun appellant stood proved beyond any reasonable doubt. He believed the testimony of the eye-witnesses, relied upon their identification of the appellants and took into consideration the unexplained absconsion of the appellants guilty of commission of murder of the deceased.

11. After going through the record and hearing the learned counsel for the parties we find ourselves unable to share the view formulated by the learned trial Judge determining the guilt of the appellants. We feel that some important aspects of the case have escaped his attention. Admittedly Nisar, the uncle of Muhammad Humayun appellant was co-accused with Muhammad Akram P.W.10 brother of the deceased, in the case of murder of Master Abdur Rauf. Muhammad Akram and turned approver in that case and Nisar had been sentenced to death and executed. Muhammad Humayun appellant lived in Sialkot City not far away from the place where the family members of the deceased resided. Muhammad Asghar and Muhammad Arshad must have been associated with the pursuit of the case against Muhammad Akram for the murder of Master Abdul Rauf and must have known Muhammad Humayun, nephew of Nisar, who had been sentenced to death and executed mainly on the evidence of Muhammad Akram. The assertions of Muhammad Asghar and Muhammad Arshad to the contrary claiming that they did not know Muhammad Humayun are hard to be accepted at face value. If Muhammad Humayun appellant had been present on the spat and had been seen by Muhammad Asghar and Muhammad Arshad while coming out of the gate of their factory with a carbine in his hand just after they had heard fire shots they would not have missed to identify him and Muhammad Asghar would not have omitted to mention his name as the principal assailant in the first information report. Muhammad Asghar and Muhammad Arshad were on the second storey of the house of their father when they heard the shots being fired. The post-mortem examination indicates that the deceased was hit with the shots at close range. As stated by Muhammad Asghar the distance between the place where the dead body of the deceased was lying and the gate of the factory was 50 feet. The distance between the gate and the place where the rickshaw is said to be standing was no more than 20 feet. The assailant is said to have made a run to the rickshaw. He would not have taken more than a few seconds to reach the rickshaw after firing the shots. But the time taken by Muhammad Asghar and Muhammad Arshad for coming out of the upper story of the house to reach the street to see the assailants was in minutes. Therefore we believe that Muhammad Asghar and Muhammad Arshad had not seen the assailants whop had made good their escape before their arrival in the street to have a view of them.

12. It, is significant to note that when the parade for identifying Muhammad lqbal appellant and Ejaz Ahmad, acquitted accused was held in the District Jail, Sialkot on the 21st January, 1978 under the supervision of Syed Abdul Khaliq Khawarzmi, P.W.6, Muhammad Asghar P.W.11, while identifying Muhammad lqbal appellant did not identify Ejaz Ahmad but stated that the second accused was Muhammad Humayun who was absconder. This also shows that Muhammad Asghar knew Muhammad Humayun appellant before. Therefore, Muhammad Humayun's identification at the parade held on the 20th August, 1978 by Muhammad Asghar and for that matter by his brother, Muhammad Arshad would be of little significance.

13. It may be of interest to mention here that Muhammad Humayun was already involved in another murder case and was said to be absconding when the murder of Muhammad Akhtar deceased took place. Therefore, his alleged absconsion in the present case does not advance the prosecution case.

14. Apart from the fact that Muhammad Asghar and Muhammad Arshad cannot be taken to have seen the appellants, the place where Muhammad Iqbal appellant was given out by Muhammad Asghar and Muhammad Arshad in their evidence to be standing beside the rickshaw was not shown to the draftsman, Bashir Masih, P.W.2, when he prepared the site plan, Exh.P.A., as it is not indicated therein. His identification parade took place 11 days after his arrest by the police. A perusal of the proceedings of the identification parade drawn up by Syed Abdul Khaliq Khawarzmi. P.W.6, discloses that Shabbir Ahmad one of the prosecution witnesses, who was not produced, when called in to identify him, stated that he had been detained alongwith Muhammad lqbal appellant by the police and state he had passed his days alongwith him in detention. Muhammad Iqbal told the Magistrate that he had been shown to Muhammad Asghar and Muhammad Arshad when he was under detention. As we have taken the view that Muhammad Asghar and Muhammad Arshad did not see the assailants at the time of occurrence their identification parade has little value.

15. In view of the above we conclude that the prosecution cannot be said to have established its case against the appellants beyond doubt. Therefore, giving them the benefit of doubt we accept their appeal, set aside their conviction and sentence imposed upon them and acquit them. Sentence of death passed upon Muhammad Humayun is not confirmed. They shall be set at liberty forthwith if their detention is not required in connection with any other case. The revision petition filed by the complainant is consequently dismissed.

M . Y . H . Appeal allowed.

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