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Criminal Appeal No.587 and Murder Reference No.226 of 1985, decided on 3rd March, 1987.

---Ss.148, 302 & 307/149--Ocular testimony, appreciation of--violative, tong standing enmity between parties, admitted by accused--Two eye-witnesses admittedly inimical towards accused and closely related to deceased--Third witness belonging to complainant party--Party faction in village existing between complainant party and accused party--Occurrence taking place in dark--Placement of three groups of accused as alleged by prosecution, not ringing true--No body from accused side found injured--Recoveries of crime empty wads and spent up bullet not fitting in with prosecution version Crime empties retained in Malkhana till after recovery of crime weapons and thereafter kept together for about 20 days before despatching to Forensic Science Laboratory--Recovery witness not residing in village and inimical towards accused--Many persons haphazardly roped in and ascribed particular parts--Five persons found innocent by police and' acquitted by Court--Ocular account as given by prosecution witnesses and recoveries, held, could not be accepted with any degree of safety--Inference that ash crime empties fired from recovered weapons were substituted, could not be totally excluded--Ocular account and recoveries were rejected and accused acquitted in circumstances,

M.B. Zaman for Appellants.

S.D. Qureshi for the State.

Dates of hearing: 15th, 17th, 28th February and 3rd March, 1987.

--Muhammad Abdullah son of Allah Bakhsh, Nasl"ullah son of Abdullah, Manzoor Ahmad, Ilyas and Ali Ahmad sons of Barkat Ali, Shaukat son of Mahzoor Ahmad. Muhammad Ashraf and Sarhar sons of Ghulam Ali, Nazir son of Feroze, Muhammad Yousaf son of Ni5 mat, Muhammad Hussain son of Allah Bakhsh, Ayub son of Sardar and Muhammad Bashir son of Muhammad Ibrahim were tried by an Additional Sessions Judge of Gujranwala under section 302/307/148/149, PPC for the murder of Aleem Ullah Baig, deceased, attempt on the lives L-if Muhammad Anwar, Saleem Ullah Baig and Muhammad Ashraf, witnesses, and for rioting. The learned trial Judge, by his judgment dated 14--9-1985, acquitted Nazir, Ilyas, Nasrullah, Muhammad Hussain and Mu'hammad Bashir of all the charges, but convicted Muhammad Abdullai, , Manzoor Ahmad, Shaukat, Muhammad Ayub, Muhammad Yousaf, Sarws r and Muhammad Ashraf and Ali Ahmad w under sections 302/149, 307/149 arid 148, PPC. He sentenced Muhammad Abdullah and Manzoor Ahmad under section 302/149, PPC to death, subject to confirmation by this Court, and the remaining six accused to life imprisonment. All the eight accused were ordered to pay Rs.10,000 each as fine or in default thereof to undergo rigorous imprisonment for two years each. All the eight accused were further ordered to pay Rs.8,000 each as compensation under section 544-A, Cr.P.C. to the legal heirs of Aleem Ullah Baig, deceased, or in default thereof to undergo further rigorous imprisonment for six months each. All the said eight accused were convicted under section 307/149, PPC for making g murderous assault on Saleem Ullah Baig, Anwar and Muhammad Ashraf P,Ws. and sentenced to undergo rigorous imprisonment for four years each together with a fine of Rs.5,000 each or in default tlioreof to undergo further rigorous imprisonment for two years each. All the accused were ordered to pay Rs.4,000 as compensation to the said three witnesses jointly failing which each was to undergo rigorous imprisonment for six months. All the accused were sentenced under section 148, PPC to undergo one year's rigorous imprisonment each. The sentences awarded to each to the accused were ordered to run concurrently. The joint appeal (Cr. A. No.587 of 1985) filed by Muhammad Abdullah and seven others convicts, against their conviction and sentences and the reference (M.R. 226 of 1985) sent up by the trial Judge for the confirmation of the death sentences awarded to Muhammad Abdullah and Manzoor Ahmad, convicts, are both before us for determination and will be disposed of by this judgment.

2. The prosecution case in brief is that on 6-9-1982 at about Isha prayer time, Muhammad Anwar PW.8 and Muhammad Ashraf (won over PW) were returning to their dera from their house. When they reached near the Haveli of Muhammad Abdullah, accused, the said Muhammad Abdullah, accused, armed with a gun, Yousaf, accused, armed with a carbine, Nazir Ahmad, accused, armed with a gun, Nasrullah, accused, armed with a 7 MM rifle, and Ayub, accused armed with a gun, attacked them. Muhammad Anwar and Muhammad Ashraf PWs. turned back and started running towards their houses. When they reached near Chowk Tapwala, Mirza Ikram Ullah Baig, complainant PW.7, who had heard the gun shots, came running from his house and saw Abdullah and others, accused, chasing Muhammad Anwar and Muhammad Ashraf PWs. whilst firing. In the meantime, Aleem Ullah Baig, deceased, Salim Ullah Baig PW 7, Ata Ullah Baig and Zafar Ahmad (won over PWs), came out of their Haveli. Similarly, Manzoor Ahmad, accused, armed with a gun, Ali Ahmad, accused, armed with a sickle, Ilyas and Shaukat, accused, armed with dangs, and Muhammad Bashir, accused, armed with a rifle, came out of the haveli of Manzoor Ahmad, accused. All these accused joined in the attack being launched by Muhammad Abdullah, accused and others. Bashir, accused, raised a lalkara that the 'Mughals; the enemies of the 'Rajputs' were present there and that none of them should be allowed to go alive, because for that purpose they had followed and chased Ashraf and Muhammad Anwar PWs. At that time Muhammad Abdullah, accused, fired with his shot gun, which shot hit Aleem Ullah Baig, deceased, on the left upper arm. Muhammad Ayub, accused, fired with his shot gun at Ashraf PW on the left lower leg. Sarwar, accused, fired with his shot gun and injured Salim Ullah PW. Manzoor, fired with his shot gun, which shot hit Aleem Ullah Baig, deceased, on the left shoulder. Ali Ahmad, accused, inflicted a sickle blow to Anwar PW 8, which hit him on the right hand. Muhammad Hussain, Ilyas, Ashraf and Shaukat, accused, caused injuries with their respective dangs to Ashraf and Muhammad Anwar PWs. The occurrence was witnessed by Ikram Ullah Baig PW.7, Muhammad Anwar PW.8, Salim Ullah Baig PW.9 and Muhammad Ashraf, Ata Ullah and Zaffar Ahmad (won over PWs). After the occurrence, all the accused left the place of occurrence with their respective weapons, raising lalkaras.

3. The motive for the present occurrence was that Mirza Abdul Hamid, a close relative of itch Ullah Baig PW, 7 and real father of Anwar-ul-Haq PTl9.5, was murdered some fourteen/ fifteen years ago by Abdullah and Manzoor Ahmad, accused, alongwith others, but the accused in the said case were acquitted. Apart from that, about one and a half months before the present occurrence, Zaffar Iqbal, Shahid Iqbal and Ikram Ullah Baig, PW. and Aleem Ullah Baig, deceased, had attacked Muhammad Abdullah, accused. Zaffar Iqbal was the son of said Abdul Hamid, deceased. In this incident Shahid Iqbal had fired at Muhammad Abdullah, accused, but he missed the target. In that behalf a case was registered at the instance of Muhammad Abdullah, accused, against Aleem Ullah Baig and others, which cause was pending investigation with the 'Crimes Branch.

4. Thereafter, Ikram Ullah Baig, complainant PW.7, put all the injured, including Aleem Ullah Baig, deceased, in a trolly and took them to the Dispensary at Nowshera Virkan. However, on their way to the hospital, Aleem Ullah Baig, deceased, succumbed to his injuries.

5. On 6-9-1982 at 10-45 p.m. Dr. Fakhar Ali PW 11 medically examined Muhammad Anwar PW 8 and found one incised wound, three lacerated wound and thirteen abrasions on various part of his body. All the injuries were simple and inflicted within two hours of the occurrence. The said doctor examined Saleem Ullah Baig PW 9 and found a gun shot wound of entrance on the front lower part of his left thigh, which simple fire-arm injury was inflicted within two hours of the examination. The said doctor also examined Muhammad Ashraf (won over PW) and found one gun shot wound, one lacerated wound, four contusions and two abrasions on various parts of his body, which simple injuries were declared to have been inflicted within two hours of the medical examination.

6. After securing the medico-legal reports of the three injured witnesses, Ikram Ullah Baig, complainant PW 7 proceeded to Police Station Noshera, where he lodged FIR Ex.PK at 1-00 a.m. on 7-9-1982, which was recorded by Ch. Barkat Ali SI PW.13.

7. The Police Officer, after recording the FIR, proceeded to the hospital, where, after preparing the necessary papers, he sent the dead body of Aleem Ullah Baig, deceased, for post-mortem examination. He also recorded statements of the three injured witnesses and took into possession their blood-stained clothes. The Investigating Officer then proceeded to the place of occurrence, from where he took into possession blood-stained earth where the deceased had died, vide memo. Ex.PB. He secured seven wads, one .12 bore crime empty and one spent bullet from near the place of occurrence, vide memo Ex. PC . He secured seventeen .12 bore crime empties PD/1-17 from near the western wall of Darbar Shah Abdul Latif, vide memo Ex.PD. All the recoveries were witnessed by Anwar-ul-Haq PW 5, Barkat Ali PW 13 and Kaleem Ullah Baig (given up PW).

8. On 30-9-1982 Muhammad Abdullah, Muhammad Yousaf, Muhammad Sarwar and Muhammad Ashraf, accused, led to the recoveries of gun P.1, carbine P.2, gun P.3 and dang P.4 which were taken into possession vide memos Ex.PE, PF, PG and PH respectively in the presence of Abdul Rauf Beg PW 6, Nazir Ahmad SI PW 10 and Abdul Rashid Beg (given up PW).

9. On 4-10-1982 Muhammad Ayub, accused, led to the recovery of his licensed gun P.5, which was taken into possession vide memo Ex. PJ in the presence of the same recovery witnesses that had witnessed the earlier recoveries.

10. After completing the necessary investigation, the challan against Muhammad Abdullah, Manzoor Ahmad, Ali Ahmad, Shaukat, Muhammad Ayub, Muhammad Yousaf, Sarwar and Muhammad Ashraf, accused, was sent up for trial.

11. Being aggrieved by the police investigation, Ikram Ullah Beg, complainant, filed a private complaint, including the names of Nazir, Ilyas, Nasrullah, Muhammad Hussain and Muhammad Bashir, accused, who were not challaned. After necessary enquiry, the learned Sessions Judge summoned the said five accused to face the trial. Accordingly, all thirteen accused were tried on the basis of the private complaint filed by the complainant.

12. At the trial, the prosecution produced Ikram Ullah Beg PW 7 to prove the motive, the said witness and Muhammad Anwar PW 8 and Saleem Ullah PW 9 in proof of the ocular account, Anwar-ul-Haq PW 5, Abdul Rauf PW 6, Nazir Ahmad SI PW 10 and Barkat Ali SI PW.13 in proof of the recoveries and Dr. Muhammad Ishfaq PW 1 and Dr. Fakhar Ali PW 11 in corroboration of the medical testimony.

13. At the trial, all the accused admitted the motive as set up by the prosecution, but denied the remaining accusations that were levelled against them, including the recoveries affected at their instance, except Muhammad Ayub, accused, who admitted that his licensed shot gun P 5 had been secured by the police from his house. In his statement under section 342, Cr.P.C., Muhammad Abdullah, accused stated as under:-

"I have already stated that there was a long outstanding enmity between us and the complainant party. On the day of occurrence at about evening time Muhammad Ashraf PW was attacked and caused injuries by Yousuf accused alongwith Zafarullah and Ishaq. The said Muhammad Ashraf and Anwar P.Ws. complained to the complainant party as a result of which the complainant party, while armed with fire-arm weapons, attacked myself and other who had come to my house and started firing at me from different directions. Aleem Ullah Baig had suffered fire-arm injuries at the hand of the complainant party. Later Muhammad Anwar PW accompanied by Saeed Mughal had gone to bring the doctor, when they came across Muhammad Hussain accused and they caused injuries to him. At that time Muhammad Anwar accused was caused injuries by other people who reached there. The occurrence did not take place in the manner and the place as claimed by the prosecution. The occurence taken place outside my haveli. The PWs are closely related with each other and interested and inimical towards me and my co-accused."

Likewise, Muhammad Yousaf, accused, made the following statement:

"The PWs are inimical towards me and related to each other. On the day of occurrence, myself alongwith Zafarullah and Ishaq had injured Muhammad Ashraf PW in the fields at about evening time. Thereafter Muhammad Ashraf and Muhammad Anwar PWs had reported this to the complainant party. Thereupon the complainant party had gone to the house of Abdullah accused after 'Isha' prayer time and started firing at the house of Abdullah accused from different directions. I was not present at the time of occurrence and remained present in my house because of the fear of the complainant party. Aleem Ullah deceased and Salim Ullah PW had suffered injuries as a result of firing by the complainant party. After the occurrence Muhammad Anwar and Saeed Mughal were going to bring the doctor when they came across Muhammad Hussain accused and caused injuries to him. Some people gathered there and caught hold of Muhammad Anwar PW and caused injuries to him."

The remaining accused stated that they had been falsely involved due to enmity with the complainant party and that the prosecution witnesses were related to each other. Muhammad Abdullah, accused, also appeared in his own defence under section 340, Cr.P.C. to support his statement made under section 342, Cr.P. C. Manzoor Ahmad, accused, in his statement under section 340, Cr.P.C. only produced copy of roznamcha Ex. D.1 of Police Station, Saddar, Gujranwala.

14. We have heard the arguments of the learned counsel for the appellants and the State and have perused the-record. The evidence as regards motive is furnished by Ikram Ullah Beg, complainant PW 7. His version of the motive already stands reproduced in para. No. 3 above and need not be repeated. The motive has been admitted by the appellants in their statement under section 342, Cr.P.C. and also by the tenor of questions put to the prosecution witnesses in their cross-examination. We therefore, hold that the motive in this case stands established.

15. The ocular account in this case is furnished by Ikram Ullah, Beg, complainant PW 7, Muhammad Anwar PW 8 and Saleem Ullah Beg PW 9. Ikram Ullah Beg PW 7 and Saleem Ullah Beg PW 9 are the uncle and cousin respectively of Aleem Ullah Beg, deceased. Due to the motive standing proved, as stated in para.14 above, Ikram Ulla Beg PW 7 and Aleem Ullah Beg PW 9 are admittedly inimical against the appellants. Abdul Rauf PW 6 admitted in cross-examination the in the village there was party faction between the Mughals and the Rajputs. The complainant party are Mughals by caste, whereas th accused party are Rajputs. Ikram Ullah Beg PW 7 admitted in his cross-examination that he was a witness in the murder case of Abdu A Hameed Beg and that Muhammad Anwar PW 8 and Muhammad Ashraf (won over PW) belonged to his party. Muhammad Anwar PW 8 in his cross-examination also admitted that it was correct that he had stated before the police that he and his brother Muhammad Ashraf (won over PW) belonged to the party of Ikram Ullah Beg, complainant PW 7. He also admitted that there was long standing enmity between the complainant party, on the one side, and Muhammad Abdullah, appellant, and others,, on the other. In view of this position, all the thre witnesses, who are Mughals by caste, are either closely related to the deceased or belong to the party of the complainant and thud have enmity with the appellants' group. The occurrence is stated t have taken place at 8-30 p.m. on 6-9-1982. Being wintry night at that time, it would be sufficiently dark. It is alleged that there was a street light burning near the place of occurrence and also lights burning in the shops near the place of occurrence. However, Ikram Ullah Beg, complainant PW 7, admitted in his cross-examination that he had not stated in the FIR Ex.PK and in the private complaint that the street light and the lights in the shops nearby were on. He admitted that there was no regular street light and electricity poles in the village, though he added that there was electric lights in the shops of Zafar and Sabir. However, site plans Exs.PZ and PZ/1 do not show the shops of Zafar and Sabir anywhere near the place of occurrence. It is, therefore, apparent that there were no street lights in the street on the date and time of occurrence. The account of the incident as -furnished by Ikram Ullah Beg PW 7, Muhamma d Anwar PW 8 and Saleem Ullah Beg PW 9 already stands reproduced in para. No.2 above and need not be repeated. According to their version, Muhammad Abdullah, Muhammad Yousaf and Muhammad Ayub, appellants, and Nazir and Nasrullah, acquitted accused, launched attack from the west pursuing Aleem Ullah Beg, deceased, eastwards as he ran in the direction of Chowk Tapwala. Simultaneously, Sarwar and Muhammad Ashraf, appellants, and Muhammad Hussain, acquitted accused, came out of their havelf into the main street about sixty feet towards the west from the place where Aleem Ullah. deceased, was killed. At about the same time, Manzoor Ahmed, Ali Ahmad and Shaukat, appellants, and Ilyas and Muhammad Bashir, acquitted accused, came out of the haveli of Manzoor Ahmed, appellant, from the street which was towards south of chowk Tapwala, which was about sixty feet to the east from the point where the deceased was murdered. According to the ocular account, Muhammad Abdullah and Muhammad Ayub, appellants, fired at Aleem Ullah Beg, deceased, and Muhammad Ashraf (won over PW) in the eastern direction. Sarwar, appellant, also fired at Saleem Ullah Beg PW 9 in the eastern direction. Manzoor Ahmad, appellant, then fired at the deceased, which could only have been in the western direction, as he was towards east of the deceased. Thereafter, Muhammad Hussain, Muhammad Ashraf and Shaukat, appellants, and Ilyas, acquitted accused, are alleged to have inflicted dang and sickle injuries to Muhammad Anwar PW 8 and Muhammad Ashraf (won over PW). It is not possible to believe that Manzoor Ahmad, appellant, and Muhammad Bashir, acquitted accused, who were armed with gun and rifle respectively, when they came out with three other persons from the street situate to the south of chowk Tapwala started blindly firing in the western direction, which would have hit their own party men, who came within the umbra of their firing. Nobody on the side of the accused-party is injured. The placement of the three groups of accused persons does not apps to ring true for in that position they should have fired at and Injured each other. The recovery of the seventeen crime empties PD/1-17 from point "U", as shown in the site plan Ex.PZ, is in the premises of Khanqah Shah Abdul Latif. It appears, therefore, that some of the members of the accused group fired from behind the boundary wall of the said Khanqah and not from within the street. If they did no fire from behind the wall, it is not possible that they would have been identified. Still further, seven wads, one crime empty and one spent bullet were recovered from point "T" as shown in the site plan Ex. PZ. This at best shows that only one person fired from near about this place and that he spent bullet of a rifle fired from some other place at some distance fell at that place. The recoveries of these crime empties, wads and the spent bullet does not clearly fit in with the case, as set up by the prosecution. Taking, all circumstances into consideration and specially the fact that the occurrence took place in the darkness of the night in a street where there were no lights and that enmity exists between the parties and no less than five persons were falsely involved who were subsequently found innocent by the police and acquitted by the trial Court, the ocular account, as given by the prosecution witnesses, cannot be accepted with any degree of safety. May be that the witnesses were present, but their account of the version being palpably untrue and many persons having been roped in haphazardly and ascribed peculiar parts, it is not possible to sift out the true culprits from those who have been roped in falsely, by even applying the rule of corroboration. We, therefore, have no alternative but to reject the ocular account totally.

16. The evidence as regards the recoveries is furnished by Anwar-ul-Haq PW 5. Abdur Rauf Beg PW 6, Nazir Ahmad SI PW 10 and Barkat Ali SI PW 13. Though the crime empties were recovered on 7-9-1982 and the five fire-arm were recovered on 30-9-1982 and 4-10-1982, yet the sealed parcels of the crime empties were retained in the Police Station upto 20-10-1982, on which date they were delivered by Khizar Hayat MHC PW 2 to Ghulam Rasool FC PW 4 for delivery to Forensic Science Laboratory. Since the sealed parcels of the crime empties were detained in the Police Station from 30-9-1982/4-10-1.98 upto 20-10-1982, during which period the fir-arms were also in the police malkhana, the inference that fresh crime-empties fired from the recovered fire-arms were substituted, cannot be totally excluded. Anwar-ul-Haq PW 5 who witnessed the recovery of the eighteen crime empties on 7-9-1982, is the son of Abdul Hameed, who was killed earlier. He does not live in the village. The recoveries, therefore, cannot be accepted with any degree of safety. Further, there is no corroboration against Manzoor Ahmed, Shaukat and Ali Ahmad, appellants.

17. For the foregoing reasons whilst the motive stands proved, the ocular account and the recoveries cannot be accepted with any degree of safety. The medical testimony by itself cannot prove the prosecution case. All the appellants are, therefore, entitled to the benefit of doubt.

18. Even otherwise, the parties have compromised their differences and through proper documentation lodged and statements of the complainant, the legal heirs of the deceased and the two injured witnesses made before us on 3-3-1987, it appears that the aggrieved persons have forgiven all the appellants in the name of Allah and have prayed that they may be acquitted. Since we have acquitted the appellants on the merit of the case, we are not called upon to act on the compromise, but we note the event nonetheless so that it may serve as a record for the grace shown by members of the complainant party to the appellants, in their hours of trial, for the greater harmony among the parties.

19. For the foregoing reasons, this appeal (Cr.A.No.S87 of 1985) is accepted and the convictions and sentences of Muhammad Abdullah, Manzoor Ahmed, Ali Ahmed, Shaukat, Muhammad Ayub, Muhammad Yousaf, Sarwar and Muhammad Ashraf, appellants, are set aside. They shall be set at liberty forthwith, if not required in any other case. Fines and compensation, if any recovered from them, shall be refunded to them. The death sentences of Muhammad Abdullah and Manzoor Ahmad, appellants, are not confirmed.

S. A./M-236/L Appeal accepted.

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