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Criminal Appeal No. 442 and Murder Reference No. 166 of 1983, decided on 24th November, 1986.

----S. 302/307; 148/149‑‑Benefit of doubt‑‑Accused party having no motive to launch a murderous attach on deceased‑‑Discrepancies existing in story of occurrence given by eye‑witnesses and contradiction in their statements leading to conclusion that they were not present at spot‑‑ Many persons falsely implicated and imputed false parts‑‑Evidence of eye witnesses not acceptable with any degree of safety‑‑Recoveries also unbelievable‑‑Fact that crime empties were sent to Forensic Science Laboratory with inordinate delay throwing a cloud of doubt on police investigation‑‑Recovery of gun at instance of accused could not, therefore: be treated as a safe incriminating piece of evidence against him‑‑Evidence of Court‑witness qua extra‑judicial confession by accused also highly contradictory and unreliable‑‑Accused given benefit of doubt and acquitted in circumstances.

S.M. Latif Khosa for Appellant.

Khan Salim Mitta for the State.

Muhammad Rafiq Chohan for the Complainant.

Dates of hearing: 22nd, 23rd and 24th November, 1986.

.‑‑ Noor Muhammad, Ahmad, Akbar, Allah Yar, Bashir, Khushi Muhammad, Anwar and Manzoor were tried by an Additional Sessions Judge of Okara under section 302/307/148/149, P.P.C. for the double murder of Shabbir Ahmad and Jewana, deceased, for attempt on the life of Arif P W, and for rioting. The learned trial Judge, by his judgment, dated 14‑6‑1983, convicted Noor Muhammad, accused, under section 302, P.P.C. (two counts) and section 307, P.P.C. and acquitted the rest. He sentenced Noor Muhammad, accused, under section 302, P.P.C. to death on two counts subject to confirmation by this Court and to pay a fine of Rs. 10,000 or in default thereof to undergo one year's rigorous imprisonment and under section 307, P.P.C. to four years' rigorous imprisonment with a fine of Rs. 5,000 or in default thereof to undergo further one year's rigorous imprisonment. Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased. The appeal (Criminal Appeal No. 142 of 1983) preferred by Noor Muhammad, convict, against his conviction and sentences, the reference (Murder Reference No. 166 of 1983; submitted by the trial Judge for the confirmation of the death sentence awarded to Noor Muhammad, convict, and the petition for special leave to appeal (P.S.L.A. No. 48 of 1986) filed by Muhammad Anwar, petitioner seeking leave to appeal against the judgment of the learned trial Judge against the acquittal of Ahmad and six others, are now before us for disposal and will be disposed of by this judgment.

2. Brief facts of the case are that on 11‑7‑1980 in the evening the complainant Anwar P.W. 2, resident of Chak No. 29/G.D., went alongwith his son Shabbir Ahmad alias Shafa, deceased, to attend the marriage of one Iqbal son of Mundia, in village Baghiana. Other people were also present. After the evening meals, the guests were made to sleep in the compound of the house. Anwar, complainant P.W. 2 and Shabbir Ahmad, deceased, slept on separate cots in the compound of the house. At about 2/3 a.m. Anwar, complainant P.W. 2 got up to urinate, when he saw Noor Muhammad and Bashir, accused, both armed with rifles. Ahmad, Allah Yar and Anwar, co‑accused, all armed with guns, and Akbar, Khushi Muhammad and Manzoor, co‑accused, all armed with pistols. The complainant identified them in the light of gas lamp that was burning in the compound. Allah Yar accused fired a shot and raised Lalkara that no one should attempt to run for he would be shot. On hearing the fire shot, the people woke up and started running out of fear. Shabbir Ahmad, deceased, also woke up and ran in order to save his life. All the accused, on identifying him, fired at him with their respective weapons, who, after being hit, fell down. Jewanu son of Bakhtawar, deceased, who had also woken up, in order to save Shabbir, deceased, fell on him. The accused assuming him to be Anwar, complainant P.W. 2 fired at him with their weapons, hitting him. In this firing Arif C.W.3 son of Jewana, also sustained injuries Meer son of Waryam P.W. 4, Umar Hayat son of Rajada, Abdullah son of Lal P.W. 3. Rustam son of Sadiq, Meer Muhammad son of Muhammad and Salehoon son of Rana C.W. 2 were present on the spot, who also saw the occurrence with their own eyes. Since they were empty‑handed, as such they did not attempt to apprehend the accused, who fled away alongwith their weapons. Shabbir and Jewana, deceased, both died on the spot, as a result of the injuries sustained by them. The accused left behind crime empties, including that of .12 bore rifle. The motive for the murder was that one year before the present occurrence, one Noor Bhatti, resident of Thatha Bhattian, was murdered. Son of the complainant Shabbir and his real brother Iqbal were challaned in that case and were in the jail. The relatives of the said Noor Bhatti deceased and his friends had murdered the son of the complainant and Jewana to avenge the murder of the said Noor Bhatti.

3. Leaving the dead bodies in the custody of Meer P .W. 4 and Umar Hayat (given up P.W.), Muhammad Anwar, complainant left for Police Station Gogira, where he lodged F.I.R. Exh. P.D. at 4‑30 a.m. which was recorded by Naik Muhammad S.I., C.W. 16.

4. The Investigating Officer proceeded to the spot, where after preparing the necessary papers, he sent the dead bodies of Shabbir Ahmad and Jewana, deceased, for post‑mortem examination. He also sent Muhammad Arif C.W. 3, who was injured, for medical examination. He collected the blood‑stained earth from the two places where Shabbir Ahmad and Jewana, deceased, had been murdered vide the memos. P.N. and P.M. respectively. He also took into possession gas lamp Exh. P. 1 vide memo. P.G. These recoveries were effected in the presence of Meer P.W.4, Naik Muhammad S.I. C.W. 16 and Dosa (given up P.W.) he also took in possession twelve .12 bore crime empties Exh. P.2 to Exh. P. 13 vide memo. Exh. P.H. and six rifle crime empties and one missed bullet P. 14 to P. 20 vide memo. P.J. Both the sets of crime empties were recovered in the presence of Bashir Ahmad C.W. 5, Naik Muhammad S.I. C.W. 16 and Ratlan (given up P.W.).

5. The same day at 3‑30 p.m. Dr. Muhammad Athar P.W. I conducted the post‑mortem examination on the dead body of Shabbir Ahmad, deceased, and found thirteen fire‑arm wounds of entry and two of exit on various parts of the body. Five pellets were also recovered from the body. The right humerus and 8th rib were found fractured. The pleura and the lower lobe of the right lung were found to be ruptured. The stomach was found full to its maximum with semi‑liquid food. Bladder was found empty. Death was due to fire‑arm injuries affecting the right axilla and the left side of the chest, collectively causing haemorrhage and with the other injuries causing shock and were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about half an hour and that between death and post‑mortem examination within 12 to 18 hours.

6. The same day, Dr. Muhammad Athar P.W. 1 conducted the post mortem examination on the dead body of Jewana, deceased, and found twelve fire‑arm wounds of entry and three of exit on various parts of the body. Apart from the vault of the skull bone being found totally crushed to pieces, five pellets and two wads were recovered. The injury to the vault of the skull bone was found to be individually sufficient to cause death, due to brain injury and shock. The fire‑arm injuries on the right axilla, front right chest, right upper arm and left thigh were found to have caused shock and haemorrhage and as such were held to be individually and collectively sufficient to cause death. Probable time between injuries and death was found to be five minutes and that between death and post mortem examination within 12 to 18 hours.

7. The same day Dr. Muhammad Athar P.W. I medically examined Arif Ali C.W. 3 and found two lacerated fire‑arm wounds on the back of his left scapula and one lacerated fire‑arm wound on the back of his right scapula. All the three wounds were found to have been inflicted within 12 hours of the examination.

8. On 23‑7‑1980, Hamid Ali, Muhammad Akbar, Allah Yar, Khushi. Muhammad, Anwar and Manzoor, accused, were arrested by Naik Muhammad S.I. C.W. 16.

9. On 30‑7‑1980, Noor Muhammad and Bashir, accused, were arrested by the same police officer.

10. On 14‑8‑1980 Noor Muhammad, accused led to the recovery of a .12 bore gun P. 3 which was taken into possession by the police vide memo. P.O. in the presence of Bakhtawar C.W. 10, Naik Muhammad S.I. C.W 16 and Muhammad Khan (given up P.W.).

11. During the investigation the police found Ahmad, Akbar, Allah Yar, Bashir, Khushi Muhammad, Anwar and Manzoor, accused, to be innocent and Noor Muhammad, accused, and three others not named in the F.I.R. namely, Wali son of Sohna, Zohra son of Walayat, and Zohra son of Amir, as guilty of the crime and incident. Accordingly, the police sent up the challan against Noor Muhammad accused, and Wali son of Sohna. Zohra son of Walayat and Zohra son of Amir.

12. Being dissatisfied with the investigation of the police, Muhammad Anwar, complainant P.W. 2, filed a private complaint before the Ilaqa Magistrate on 24‑8‑1980 naming all the eight accused previously mentioned by him in his F.I.R. as the assailants in the case. After preliminary inquiry, summons were issued against all the said accused to face the trial.

13. The Additional Sessions Judge, before whom both the private complaint case and the State case were marked for trial, commenced the trial of the private complaint case first.

14. At the trial in the private complaint case, the complainant produced Muhammad Anwar P.W. 2 to prove the motive, the said witness and Abdullah P.W. 3, Meer P.W. 4, Salehoon C.W. 2 and Muhammad Arif C.W.3 in proof of the ocular account, Meer P.W. 4, Bashir Ahmad C.W. 5. Bukhtawar C.W. 10 and Naik Muhammad S.I., C.W. 16 in support of the recoveries and Dr. Muhammad Athar P.W. 1 in corroboration of the medical testimony.

15. All the accused denied all the accusations that were levelled against them.

Noor Muhammad accused, also denied the recovery of the gun alleged to have been affected at his instance. Noor Muhammad, Allah Yar and Manzoor, accused, imputed their false implication to enmity and suspicion on the part of the complainant, as they had appeared as witnesses against Bashir and lqbal, son and brother respectively of Muhammad Anwar, complainant P.W. 2, in the murder case of Noor Bhatti. The remaining accused imputed their false implication also to enmity and suspicion.

16. The learned trial Judge, relying on the ocular account, the recoveries, the medical evidence and the extra‑judicial confession made by Noor Muhammad, accused, convicted and sentenced Noor Muhammad, accused, but acquitted the rest.

17. We have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the official record. The evidence as regards the motive is furnished by Muhammad Anwar P.W. 2. According to him, about a year before the occurrence, one Noor Bhatti was murdered, in respect of which matter Allah Yar, acquitted accused, registered a case against Bashir and Iqbal, the son and brother respectively of Muhammad Anwar P.W.2, and Jehangir, Akbar and Dosa, the cousins of the said complainant, Noor Muhammad. appellant, and Manzoor, acquitted accused, were witnesses in the said case. To avenge the said murder of Noor Bhatti, the present appellant and the acquitted accused, who were from his Bradari and friends, murdered Shabbir Ahmad and Jewana, deceased. Muhammad Anwar P.W. 2 submitted that Noor Muhammad, appellant, and Ahmad and Akbar acquitted accused, were friends of Noor Bhatti, deceased, whereas Allah Yar, Khushi Muhammad, Bashir Ahmad, Anwar and Manzoor, acquitted accused, were related to Noor Bhatti, deceased. It is also apparent from the' F.I.R. Exh. P.D. that at the time of the occurrence, Basher and Iqbal, the son and brother of the complainant, were in jail. In the light of all these facts it can hardly be said that the accused party had a motive to launch a murderous attack on Shabbir Ahmad or Jewana, deceased. If any motive lay, it lay with the complainant party to assault or injure Allah Yar, acquitted accused, who had lodged that F.I.R., or to assault Noor Muhammad appellant, and Manzoor acquitted accused, who were the witnesses in that case. The motive, therefore, does not stand proved in the instant case and must be rejected.

18. The ocular account in this case is furnished by Muhammad Anwar P.W. 2, Abdullah P.W. 3, Meer P.W. 4, Salehoon C.W. 2 and Muhammad Arif C.W. 3. Meer P.W. 4 in his statement at the trial denied that he had slept in the Ahata of Mudaee, the father of the bridegroom lqbal, though in his police statement Exh. D.E. he had stated so. He also admitted that Jehangir and Akbar, who were the accused in the murder case of Noor Bhatti, were his brothers, and Dosa and Iqbal, who were also accused in that case, were his cousins. Since this case had been instituted by Allah Yar, accused, against them, it showed his enmity towards the accused. In this view of the matter, he was rightly disbelieved by the trial Court. Salehoon C.W. 2 had a separate residence in village Baghiana. The Ahata where the occurrence took place was a cattleshed. It appears he had rented the Ahata to Mudaee, father of Muhammad Iqbal, bridegroom, temporarily for his guests to stay. It was not possible to believe that he spent the night at the said Ahata which was used for tethering cattle, when he had his separate residence in the same village. He was also, therefore, rightly disbelieved by the trial Judge. Muhammad Arif C.W. 3, who was only 6/7 years of age at the time of occurrence, had, in his earlier statement Exh..D.D. to the police, not referred to the number or identity of the assailants, but at the trial he gave particulars of the number of the accused, the manner in which they were armed and the particular part played by Noor Muhammad, appellant, in killing his father. In view of the discrepancy between his earlier statement and that at the trial, his evidence was rightly rejected by the learned trial Judge. We agree with the findings of the trial Judge rejecting the testimony of Meer P.W. 4, Salehoon C.W.2 and Muhammad Arif C.W. 3. Muhammad Anwar P.W.2 and Abdullah P.W. 3 alone have been relied upon by the trial Judge. We will, therefore, discuss their evidence. The site plan Exh. P.F. shows point No. I where the two deceased were murdered, point No. 2 from where Muhammad Anwar P.W. 2 saw the occurrence, point No. 3 from where Abdullah P.W. 3, Meer P.W. 4 and Umar Hayat (given up P.W.) saw the occurrence and point No. 4 from where Rustam (given up P.W.), Meer Muhammad (given up P.W.) and Salehoon C.W. 2 saw the occurrence, but nether at these points nor at any other place in the Ahata any cots have been shown. Fazal Ahmad Khan, Draftsman C.W. 1, in cross‑examination admitted that though the names of the witnesses were given to him, but he was not told where the cots were situated in the Ahata, as a result of which he did not mention about the presence of the cots of any of the witnesses or the fact that they were sleeping in the compound when the occurrence took place. In the absence of any reference to the cots of the witnesses in the site plan Exh. D.D. the story of these two witnesses or that of the other witnesses that they were sleeping in the said Ahata, cannot be accepted with safety. Both Muhammad Anwar P.W. 2 and Abdullah P.W. 3 in their earlier statements stated that Shabbir, deceased, stood up when he heard the Lalkara of the accused and on seeing them ran to save his life and thereafter, he was hit by the fire of all the accused, whereas at the trial they both stated that he was hit by the fire when he was still on the cot. Both of them stated in their earlier statements that Jewana, deceased, in order to save the life of Shabbir Ahmad, deceased, fell on the person of Shabbir Ahmad, deceased, and the accused believing Jewana, deceased, to be Muhammad Anwar P.W. 2, fired at him whereas at the trial they stated that Jewana, deceased, was standing near the cot of Shabbir Ahmad, deceased, when he was hit by the fire shots and fell on the cot of Shabbir Ahmad, deceased. Both in their earlier statements mentioned that Noor' Muhammad, appellant, and the acquitted accused had fired at Jewana, deceased, whereas at the trial they stated that Noor Muhammad, appellant, alone inflicted 4/5 blows with the butt‑end of his rifle on the head of the said deceased. In the inquest report also there is no reference of any butt blows given to Jewana, deceased. Both the witnesses in their earlier statements stated that they had taken their meals in the evening, whereafter they slept, whereas at the trial both stated that the meals continued to be served till mid‑night, in order to make their evidence conform to the medical evidence, which showed that the deceased had died within a period of three hours from taking his last meal. Muhammad Anwar P.W. 2 on 21‑8‑1980 made a statement Exh. D.A. before the police that Noor Muhammad appellant, and Wali son of Sohna. Zohra son of Hidayat and Zohra son of Amir had admitted murdering Shabbir Ahmad and Jewana, deceased, to Usman C.W. 14 and Naika C.W. 15. At the trial, however, he denied having made such a statement. Muhammad Anwar P.W. 2 stated at the trial that he had come to attend the marriage of Iqbal on a horse alongwith his son Shabbir Ahmad, deceased. The police did not take into possession the horse in question. At the trial, Muhammad Anwar P.W. 2 stated that he woke up at about 2/3 a.m. from the Ahata to urinate when the appellant and the acquitted accused entered the Ahata. If he was present at the spot, it is not understood why he was not also shot, if the accused were animated by the motive, as given by him. At the trial he did not state that he had left the Ahata and was outside the Ahata when the occurrence took place, but the site plan Exh. P.F. shows his presence outside the gate of the Ahata. If both these witnesses were present and the gas lamp had been burning, they would have been able to see the number of the culprits, the weapons carried by them, their identity, if their faces were not muffled, and the particular parts played by some, if not all of them. They would not have contradicted themselves on material points, such as whether Shabbir Ahmad, deceased, was hit when he was getting up or had got up or had begun to run after getting up, or whether Jewana deceased, was fired at by all the accused or was given 4/5 injuries on the head by Noor Muhammad, appellant, with the butt‑end of his rifle, or whether Jewana, deceased, was standing on the ground near the cot of Shabbir, deceased when he was fired at or he had actually fallen on the person of Shabbir Ahmad, deceased, and was thereafter fired at, or whether the meals were served in the evening or till late night. All these contradictions and other facts narrated above show that the said two witnesses were not present, or, if they were there was no gas lamp burning and they, therefore, could not see who the culprits were or who had fired at which of them, with the result that they implicated a large number of members of the accused party and imputed firing to all of them, in view of the case instituted by Allah Yar, acquitted accused, against four to five members of their group. After the post‑mortem examination of the deceased, when it was found that the injury on the head of Jewana, deceased, was a blunt weapon injury and the contents of the stomach of Shabbir Ahmad deceased, disclosed that he had died within 3‑4 hours of his taking his last meal, the story at the trial had to be altered. In the meantime, certain disclosures made by Usman C.W. 14 and Naika C.W.1J during investigation disclosed that the culprits were Noor Muhammad, appellants, and Wali, Zohra and another Zohra and not Noor Muhammad, appellant, with the seven acquitted accused. It appears that Muhammad Anwar P.W. 2 even subscribed to the new version by his statement Exh. D.A. made to the police, but realizing that the said case would not hold fast at the trial, filed a private complaint to press his earlier story. Accordingly, it appears that at the trial the story was altered and inter alia Noor Muhammad, appellant, was given the specific part of battering Jewana, deceased's head with the butt‑end of his rifle, etc. All the eight accused in this case were found innocent by the police in a number of investigations of which seven have beer, given the benefit of doubt. Taking all circumstances into consideration, we regret to state that we cannot accept the evidence of Muhammad Anwar P.W. 2 and Abdullah P.W. 3 with any degree of safety, as their version does not appear to be a true account of what transpired on that fateful night and many persons appear to have been falsely named and imputed false parts. It is not a case where we can safely impute participation, by looking for corroboration. We cannot help but reject the ocular account totally.

19. The recovery of six rifle crime empties from the spot on 11‑7‑ 1980 is proved by Bashir Ahmad C.W. 5 and Naik Muhammad S.I. C.W. 16 and the recovery of the gun P. 3 at the instance of Noor Muhammad, appellant on 14‑8‑1980 is proved by Bukhtawar C.W. 10 and Naik Muhammad S.I. C.W. 16. Though Muhammad Anwar P.W. 2 referred to some crime empties lying at the spot in his F.I.R. Exh. P.D., the same were not shown in the site plan Exh. P.F. Fazal Ahmad Khan C.W.1 stated in his evidence that he had not shown the presence of the crime empties in the site plan or their being taken into possession by the police, as neither the Investigating Officer nor any witnesses had stated this fact to him. As regards the recovery of the gun P. 3, Bukhtawar C.W.10 does not support the same. In the circumstances, the solitary statement of Naik Muhammad S.I. C.W. 16 cannot be accepted with any degree of safety. But even assuming, for a matter of argument that the recoveries of the crime empties and the gun have been properly made. the fact that the crime empties were not sent to the Forensic Science Laboratory before 14‑8‑1980, throws a cloud of doubt on the police investigation. Strangely in this case the rifle crime empties were delivered to the Forensic Science Laboratory on 24‑9‑1980, five weeks after the gun was recovered, and the gun was delivered to the Forensic Science Laboratory on 30‑3‑1981, almost thirty weeks after its recovery. In view of such great delay, the recovery of the gun P. 3 at the instance of Noor Muhammad, appellant, cannot be treated as a safe incriminatory piece of evidence against him.

20. This now leaves us with the evidence of Usman C.W'. 14 and Naik Muhammad C.W. 15 with regard to the extra‑judicial confession made by Noor Muhammad, appellant, to them. According to their case, immediately after the double murder was committed by Noor Muhammad, appellant, Wali, Zohra son of Hayat and Zohra son of Amir, all these four persons turned up at the house of Naika C.W. 15, where they fired in the air, proclaimed that they had murdered the son of Muhammad Anwar P.W. 2, and picked up Sotas from their house and inflicted Sota blows on Usman C.W. 14. The evidence of these two witnesses is highly contradictory. According to Usman C.W. 14, all the four accused were armed with guns, but according to Naika C.W. 15, Noor Muhammad, appellant, and one other, were armed with guns, and the remaining two were armed with Sotas. According to Naika C.W. 15, the four accused enquired as to where his son Meera was and when Meera came out and saw the accused, he ran away, but Usman C.W. 14 does not mention anything about the accused enquiring about his brother Meera and his brother running away on seeing the accused. According to Usman C.W. 14, all the four accused had proclaimed that they had come to avenge the murder of Noor Bhatti, whereas Naika.C.W, 15 denies the said assertion. Muhammad Anwar P.W. 2, himself in his statement denies the version of Usman C.W. 14 and Naika C.W. 15 and the contradictions appearing in the statement of Usman C.W. 14 and Naika C.W. 15, make the evidence of the latter two highly unreliable, to be accepted.

21. The upshot of the above discussion is that the evidence as regards the motive, the ocular account, the recoveries and the extra‑judicial confession cannot be accepted Noor Muhammad, appellant, is therefore, entitled to the benefit of doubt.

22. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Noor Muhammad, appellant, is set aside. He shall be set at liberty forthwith, if not required in any other case. Fine, if any recovered from him, shall be refunded to him. The sentence of death awarded to No6r Muhammad, appellant, is not confirmed.

23. There being no merit in the petition for special leave to appeal (P.S.L.A. No. 48 of 1986) filed by Muhammad Anwar, petitioner, the same is dismissed in limine.

M.Y.H./N‑12/L Appeal accepted.

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