DAUD JAN Versus STATE

NAZIR AHMAD BHATTI, J.- Complainant Manzoor Muhammad son of Hassan Muhammad was driver of a pick-up No. PRJ-3334. On 22-5-1986 he was taking passengers in his pick-up from Pabbi to Kotli Kalan. At about 4-00 p.m. when they reached near Hindo Kanda there started firing from the front as a result of which the tyre of the vehicle was punctured and the vehicle stopped. Two persons armed with weapons and with muffled faces came near the vehicle and asked the passengers to hand over whatever valuables they had and in this way started depriving the passengers of their money. In the meanwhile 5 other persons appeared from the front and they also started firing indiscriminately at the vehicle as a result of which three passengers Pervez son of Ayub, Mst. Nawab Bibi wife of Samar Din and Jafar Ali son of Samar Ali died at the spot whereas Shamshad son of Umar Din and Abdul Malik son of Moulvi Abdul Khalique were injured. The complainant went to Police Station Pabbi at 1800 hours and recorded F.I.R. No. 160.

2. During investigation appellant Daud Jan was arrested on 4-6-1986 and he made a confessional statement on 14-6-1986. Appellant Sajjad Hussain was arrested on 5-6-1986 and he made a confessional statement on i1-6=1986. Appellant Multan Zarin was arrested on 4-6-1986 and he made a confession 12-6-1986. Accused Khair Afzal was arrested on 15-6-1986 but he was granted pardon under section 337, Cr.P.C. on 17-6-1986 and his statement was recorded on 18-6-1986. After his arrest appellant Sajjad Hussain led the police party to his house on 11-6-1986 and at his instance one rifle .303 bore alongwith 3 rounds were recovered from his house by Investigating Officer P.W. 12 Shaukat Ali Inspector in the presence of P:W.5 Lajber. In the presence of the same witness and on the same day the Investigating Officer had recovered one rifle .303 bore and 10 rounds of the same bore from the house of appellant Multan Zarin at his instance. The Investigating Officer recovered one pistol of .30 bore from the house of appellant Daud Jan on 22-5-1986 in the presence of P.W. 6 Malik Jamdad. The Investigating Officer also recovered from inside the vehicle and from the spot empty shells of .303 bore. He also recovered one empty shell of .30 bore and missed round of .30 bore from the spot. The weapons recovered from the houses of the -appellants and the empty shells recovered from the spot were sent to the Forensic Science Laboratory, Peshawar for examination. The expert report, Exh.K/14, shows that the empty of the .30 bore recovered from the spot was fired from the pistol recovered from the possession of appellant Daud Jan whereas the missed bullet of .30 bore was not fired from that pistol. Similarly the report showed that some empties of .30 bore were fired from Rifle No.86091/2310 and Rifle NoA-3344 and Rifle No.757 while some empties were not fired from the said rifles.

3. After investigation all the three appellants and approver Khair Afzal were sent up for trial before the Additional Sessions Judge Nowshera who charged them alongwith their absconding accused Dilawar Shah and Taj Wali Shah under section 302/307/148/149, P.P.C. and section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which all of them pleaded not guilty and claimed trial.

4. After the conclusion of the trial the learned Additional Sessions Judge acquitted Khair Afzal but convicted and sentenced all the three appellants as under:-- .

(1) Under section 148, P.P.C. to two years rigorous imprisonment with a fine of Rs.500 or in default of payment of fine to one year's rigorous imprisonment.

(2) Under section 302/149, P.P.C. sentenced to death with a fine of Rs.10,000 or in default of payment of fine two years' rigorous imprisonment.

(3) Under section 307/149, P.P.C. to 10 years' rigorous imprisonment with a fine of ,gs.5,000 or in default of payment of fine to suffer 1-1/2 years' rigorous imprisonment.

(4) Under section 396/149, P.P.C. sentenced to death and a fine of Rs.10,000 or in default of payment of fine further two years' rigorousimprisonment.

(5) Under section 397/149i*P.P.C. sentenced to 8 years' rigorous imprisonment.

The three convicted accused Daud Jan, Sajjad Hussain and Multan Zarin have challenged their conviction and sentence by the appeal in hand. The learned Additional Sessions Judge had also forwarded Murder Reference No.l/P of 1992. This judgment will also dispose of the murder reference.

5. The evidence against the three appellants consists of firstly, the ocular evidence and the testimony of the approver; secondly, recoveries of weapons and empty shells; and thirdly, confessional statements of the appellants.

6. The ocular testimony consists of the statements of P.W.7 Mir Ali, P.W.8 Shamshad and P.W.9 Sakhawat Shah, P.W.7 Mir Ali had stated that on the day of occurrence he was driving the unfortunate vehicle when the occurrence took place. According to his testimony two persons emerged when they reached Hindu Kanda, one of them having a rifle and the other armed with a pistol. The man armed with pistol snatched Rs.500 from him and also snatched different amounts from the passengers sitting in the vehicle. Thereafter, they allowed him to go and when he started the pick-up the said two persons fired at the vehicle from behind as a result of which he and his cleaner Zarghan Shah received injuries alongwith some passengers and one lady passenger and a boy died at the spot. P.W.8 Shamshad stated that he was travelling in the said vehicle and when they reached near Hindu Kanda two persons merged and stopped the vehicle, one of the two person had a topak while the other was armed with a pistol, the accused armed with a pistol robbed the passengers of their money. This witness further stated that thereafter some 4/5 other persons, who were sitting nearby ditch started firing at the vehicle as a result of which he and some other passengers were injured, a passenger named Parvaiz also received injuries and died, that a female and two other passengers had also died as a result of shots fired by the accused. P.W.9 Sakhawat Shah is another passenger of the vehicle and stated that the vehicle was stopped by two persons out of whom one was having a rifle while the other was armed with a pistol, that the accused aimed their weapons at the driver of the vehicle and snatched some amount from him and in the meantime firing; started and he received injury on his right thigh. The aforesaid extracts from the testimony of the three eye-witnesses will show that they had neither named any of the assailants nor had identified all of them. Not only that but their testimony was also contrary to each other. No explanation was brought on the record to show as to why Driver Mir Ali was produced as a complainant instead of Driver Manzoor Muhammad who had recorded the F.I.R. It is also note-worthy that the driver did not depose that after some time 5 other persons had also started firing at his vehicle. According to the F.I.R. the first two assailants had muffled their faces but none of the witnesses corroborated that version. Since none of the eye-witnesses had disclosed the name of any assailants, it was obvious that they were not known to them. But still no identification parade was held. The F.I.R. had not disclosed any feature of the two assailants with muffled faces and the other 5 assailants. There was no evidence on the record by which the assailants could be properly identified. No doubt three persons lost their lives at the spot as a result of firing by the assailants but no proper ocular evidence had been brought on the record to connect the three appellants with the commission of that offence.

6-A. In so far as the testimony of approver Khair Afzal is concerned, that is also not worthy of any credit. He volunteered to become an approver on the day next to his arrest. This shows that there was some preconcert between the Investigating Officer and the approver, as a result of which he surrendered himself and was made an approver. There are strong reasons to believe that this evidence was fabricated. His deposition was sought to be corroborated by the recovery of a rifle from him and empties recovered from the spot matched with it. However, no evidence was brought on the record to prove as to on what date and in the presence of which person the rifle was recovered from his possession. This circumstance also makes more doubtful the testimony of the approver.

7. Evidence was brought on the record to prove the guilt of the appellants through the weapons recovered from each of them. A pistol of .30 bore was recovered at the instance of appellant Daud Jan. One empty shell and one missed bullet of .30 bore were also recovered from the spot by the Investigating Officer on 22-5-1986. The empty shells and the missed bullets were sent to the Arms Expert 2 days aft or their recovery, whereas the pistol was recovered at the instance of appellant Daud Naj on 9-6-1986. No number of the pistol, which was allegedly recovered from the possession of this appellant, has been given in the recovery memo. (Exh.P.2/5). It was also an unlicensed weapon. No cogent evidence was brought on the record that the pistol which was sent to the Arms Expert was the same which was recovered at the instance of appellant Daud Jan, as neither the number of this pistol was shown in the recovery memo nor in the report of the Arms Expert. Similar is the case of the rifle alleged to have been recovered from appellant Sajjad Hussain. The number of the rifle, alleged to have been recovered at the instance of this appellant, was neither mentioned in the recovery memo nor in the report of the Chemical Examiner and it could not be verified whether the said rifle actually belonged to this appellant. In so far as recoveries are concerned, it is interesting to note that the same were made on 11-6-1986 which would show that the appellants had in a way confessed their guilt and participation in the offence but still the confessional statements were recorded 3/4 days after the recovery of the weapons. When the appellants had offered to hand over the alleged weapons of offence it showed that they had also admitted their guilt then what was the hitch in recording their confessional statements on the same day. This circumstance also makes the recoveries of weapons at the instance of appellants very doubtful and this aspect of the case does not advance the case of the prosecution in any way.

8. It is alleged that all the three appellants had made confessional statements. The perusal of these statements would show that the same are both inculpatory and exculpatory. It is also a fact that the confessional statements were recorded more than 7/8 days after the arrest of each appellant. It is also noteworthy that the confessional statements were recorded 3/4 days after the recovery of crime weapons at the instance of the appellants. In their deposition under section 342, Cr.P.C. the appellants stated that they were subjected to great physical and mental torture and they retracted from the confessional statements. It is also to be taken into consideration that no question was asked from each of the appellants regarding the confessional statement made by each of them against each other, as a result of which no appellant was able to rebut the allegation made against him in the confessional statement of his co appellant. For the aforesaid reasons no reliance can be placed on the confessional statements in order to arrive at a conclusion of the guilt of, the appellants.

9. It shall thus be seen that the State had failed to produce evidence against the appellants which could clearly prove their guilt. The appeal is, therefore, accepted. The conviction and sentence of all the appellants recorded on 16-2-1991 by the learned Additional Sessions Judge, Nowshera are set aside and they are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case. The Murder Reference No.l/P of 1992 is not confirmed.

N.H.Q./843/FSC Appeal accepted.