MUHAMMAD ALI Versus STATE

ABDUL JABBAR KHAN, J .‑ Muhammad Ali son of Amir (35), Muhabbat son of Bahlak (50), Sakhi Muhammad son of Amir (40) and Naurang son of Sadad (60) all Awan by caste residents of Machhora Sprang, district Sheikhupura, were tried by the learned Additional Sessions Judge, Lyallpur, under sections 302/307/382/34, P. P. C. for committing theft having made preparation ‑for causing death or hurt, for committing the murder of Ahmed son of Goba deceased and for making a murderous assault on Zakir P. W.

10. Vide his judgment dated Ist October 1974, the learned trial Judge while giving benefit of doubt acquitted Naurang accused but he found Mohabbat, Muhammad Ali and Sakhi Muhammad guilty of the charges levelled against them and convicted and, sentenced them as follows: ‑

Under section 302/34, P. P C. Mohabbat accused was sentenced to death while Muhammad Ali, and Sakhi Muhammad were awarded imprisonment for life each. Each of the three accused were also sentenced to a fine of Rs. 2000 each or in default whereof to undergo two years' R. I. under section 307/34, P. P. C. all the three accused namely Muhabbat, Muhammad Ali and Sakhi Muhammad were sentenced to seven years' R: I. each with a fine of Rs. 1000 each or in default of payment of fine to undergo one year's R. I. each. Out of the fine if realised, Rs. 2,000 were ordered to be paid to be legal heirs of Ahmed deceased and Rs. 1,000 to Zakir P. W. 10 as compensation. They were also sentenced to four years' R. I each under section 332/34, P. P. C. It was ordered that the sentences under sections 307/382/34, P. P. C. awarded to Mohabbat accused, shall take effect if the death sentence awarded to him is not confirmed by the High Court.

Mohabbat, Muhammad Ali and Sakhi Muhammad convicts have filed a joint appeal against their conviction and sentences. There is also a Murder Reference before us for the confirmation of death sentence awarded to Mohabbat accused, under section 374, Cr. P. C. We will dispose of both, the appeal as well as the Murder Reference by a single judgment.

2. The occurrence took place on the night between 5/6‑9‑1972 near about 12‑00 O'clock in the village Rashosani Dakhli Chak No. 633, situated at a distance of 8 miles from Police Station Lundianwala, district Lyallpur. F. I. R. Exh. PA was registered at the instance of Zulfiqar P. W. 9 (complainant) on 6th September, 1972 at 7-30 a.m. which was recorded by Abdul Karim M. H. C. P. W. 3.

3. The motive as set up by the prosecution in this case is that there existed a long standing enmity between the accused and the complain ant party which had culminated into security proceedings and civil litigation. On account of this bad blood the accused decided to commit theft having made preparation for causing the death or hurt and when apprehended, they in order to effect their escape, fired gun shots on Ahmad deceased, the servant of the complainant and Zakir P. W. 10, a relation of the complainant.

4. The case of the prosecution as stated by Zulfiqar P. W. 9, the maker of the F. I. R. is as under: ‑

He told the police that he alongwith Zulfiqar son of Kamala, jointly owned dhari, which was being used as cattle shed. This dhari was situated at a distance of two squares from the village abadi. The complainant alongwith Zakir P. W. and Ahmed deceased used to sleep in front of the door of that dhari in order to keep a watch over their cattle. On the fateful night at about 12.00 O'clock, the complainant heard some sort of commotion and warned his companions. He flashed a torch light and found that Mohabbat and Muhammad Ali appellants armed with .12 bore guns and Sakhi Muhammad appellant armed with a pistol and Naurang acquitted accused armed with a lathi, had untethered his two she‑buffaloes and were in the process of taking these cattle away from the dhari. All the three got up and gave chase to the culprits. They, at the same time, raised hue and cry, which attracted Zulfiqar son of Kamala P. W. 12 and Manzoor P. W. 11, residents of the village alone with many other persona. All these people joined the chase with the complainant party and pursued the culprits. Whereupon Mohabbat appellant fired a gun shot which hit Ahmad deceased at his left arm. Ahmad fell on the ground. Muhammad Ali also opened fire with his gun which bit Zakir P. W. 1.0 on both of his legs. The culprits after firing these shots, ran away leaving the stolen cattle behind. Subsequently Ahmad injured died in the hospital.

5. Muhammad Ayub A. S. 1. (P. W. 14) who was posted at Lundian wala Police Station, at the relevant time, after receiving copy of the F. I. R. got busy with the investigation of this case. He visited the spot and collected some blood‑stained earth from the spot at some distance from the charpai of Ahmad deceased and prepared recovery memo Exh. PC. He also took into possession the two she buffaloes which wore produced before him by Zulfiqar complainant. During the spot inspection he took into possession two crime empties P. 6/1‑2 and one missed cartridge P. 7. vide memo lash. PE. Zulfiqar complainant also produced before him one torch P. 2, two cells P. 3/1‑2. The torch was in working order and the cells were in its chamber.

On 6th September, 1972 the A. S. I. visited Civil Hospital Jaranwala where Ahmad deceased was under treatment. He enquired from the doctor ride query Exh. PR/3 as to the condition of Ahmed deceased. The doctor recorded a certificate Exh. PR/1 to the effect that Ahmad injured was in a fit condition to make a statement. This police officer recorded the statement of Ahmad deceased in the presence of Dr. Copt. Mumtaz Ahmad P. W. 6: The A. S. I. also got prepared site‑plans Exh. P. S. and P. S./1 from Dost Muhammad Patwari P. W. 4 in which the place of occurrence was indicated as well as the places where the witnesses were placed at the time of occurrence. Naurang, Muhammad Ali and Sakhi Muhammad accused were arrested on 17th‑September, 1972 by Abdul Hakim, S. I. (P. W. 7). Mohabbat appellant was taken into custody by Muhammad Yousaf, Inspector Police on 20‑9‑1972. Nothing was recovered at the instance of the arrested accused by the Investigating Officer.

6. Dr. Captain Mumtaz Ahmad medically examined Ahmad deceased while he was alive on 6‑9‑1972 at I1‑30 a.m. and found the following injuries on his person:‑

(1) A fire‑arm wound of entry 1/4" x 1/4" on the left fore‑arm on the inner side with a wound of exit 3/4' x 3/4" just below the wound of entry.

(2) A fire‑arm wound of entry x ' on the‑back of upper arm with a wound of exit 3/4' x 3/4' on left upper arm on inner side. Bone fractured.

(3) A firearm wound of entry x ' on the outer side of left upper arm.

(4) A fire‑arm wound of entry 1' x ' on the upper part of left fore arm with a wound of exit 2'x 1 ' medial to wound of entry.

(5) Four fire‑arms wounds of entry 4' x 3' area each measuring 1/3 x 1/3 x on back of left upper arm with a wound of exit 7 x 5 ' on inner side of left fore‑arm. Both the bones were fractured.

He found injury No. 2 as grievous, which was inflicted on the vital parts of the body. Same injuries were found at the time of post‑mortem examination.

On 6‑9‑1972 at 11‑40 a.m. the same doctor medically examined Zakir P. W. 10 and found the following injuries on his person

(1) A fire‑arm wound of entry 3/8'x 3/8 on the inner side of middle of left log. Pellet was palpable.

(2) A fire‑arm wound 3/8' x 3/8' on the outer and middle part of right leg with a wound of exit 3/8' x 3/8' on front of right leg.

(3) A fire‑arm wound of entry 3/8' x 3/8' on lower and outer side of right leg with a wound of exit 3/8' x 3/8' on front of right leg.

All the injuries were simple caused by fire arm within 6‑12 hours.

In the opinion of the doctor the death of Ahmad deceased occurred due to shock and haemorrhage. Injury Nos. 2 and 5 were grievous and dangerous to life, which were sufficient to cause death in the ordinary course of nature. In his cross‑examination the doctor stated that the injury on Ahmad deceased was caused most probably by two fires the distance was very close‑leas than one foot and the fire‑arm was fired from left side of the victim.

7. The case of the prosecution rests on the evidence of motive, ocular testimony and the medical evidence. The learned A. P. P. gave a statement, which is at page 41 of the Paper Book by which he gave up Sakhi Muhammad as won over and Muhammad Yousaf Inspector as unnecessary.

8. The case of the defence is that of denial simplicitor. The appellants filed a detailed written statement, which is at page 47 of the Paper Book. The salient features of the written statement are as follows: ‑

The mother of Narang (acquitted accused) owned some land and was keen to sell it. Nobody in the village was coming forward to purchase that land for the reason that none wanted that Naurang should be deprived of this property. It was Zulfiqar complainant who out of sheer greed purchased this land and thus in a way usurped his prospective right of inheritance. Zulfiqar complainant was a man of means therefore nobody volunteered to help Naurang except Muhabbat, Muhammad Ali and Sakhi Muhammad appellants who, out of sheer compassion, offered their services to help Naurang to secure his rights. It was with their help that ultimately Naurang took adverse possession of the property and this led to litigation between Naurang on one side and the complainant party on the other side. This civil litigation resulted into security proceedings under sections 107/151 Cr. P. C. and also culminated in a case under section 325, P. P. C. between them. Their relations further deteriorated due to a number of cases, which the parties got registered against each other. The appellants set up a plea that in fact the case has been fabricated against them and the injuries an Ahmad deceased were managed and manipulated at the hands of the complainant party. They pleaded that the case against them was concocted one. In their statement they also challenged the veracity of the dying declaration for the reason that although three Magistrates were available at Jaranwala alongwith Tehsildar and Naib Tehsildar who also were competent to record the dying declaration but the same was recorded by an A. S. I. in collusion with the complainant party. They asserted that they were found innocent by the Inspector of police and the A. S. I. in that matter was proceeded against departmentally for false investigation. They further averred that hundreds of persons of the locality were ready to take oath on Holy Quran that they were innocent and had been falsely Involved in the case by their opponents. The appellants have produced Muhammad Yousaf who was Inspector of C. I. A. Lyallpur at the relevant time and was D. S. P. at the time of making his statement, as D. W. 1 and Khadim Hussain A. S. I. as D. W. 2, to prove that they were found innocent during the course of investigation by these officers.

8. We have heard the learned counsel for the appellants as well as for the State and have also gone through the entire record of the case carefully with their assistance. Learned counsel for the appellants at the very outset has drawn our attention to the F. I. R. which according to him belies the factual position at the spot. He has taken us through the evidence of Dost Muhammad Patwari P. W. 4 and has submitted that the evidence of this witness runs counter to the story given in the F.

1. R. He has further taken us through the statements of all the P. Ws. who claim themselves to be eye‑witnesses but have failed to support the case of the prosecution on the point of identity. According to the learned counsel all the witnesses in this case are interested, partisan and inimical therefore, without corroboration from unimpeachable source the learned trial Court was not justified to record the conviction of the appellants. He has also challenged the dying declaration as unworthy of any credence and at the same time has laid lot of stress on the evidence of D. W. I and D. W. 2 who during the course of investigation found all the appellants innocent.

9. We proceed to examine all these points as contended by the learned counsel for the appellants vis‑a‑vis the record and the evidence of the P. Ws. before, us. According to the statement of the complainant, Ahmad deceased and Zakir P. W. were injured while they were pursuing the culprits who had stolen his she‑buffaloes from his cattle shed. If that he accepted as truth then Ahmad deceased would he in the act of pursuit when he was fired at by Muhabbat appellant. Similar would be the case with Zakir P. W. who was also chasing the culprits alongwith Zulfiqar complainant in the company of Ahmad deceased. What we find from the site‑plan 13xh. P. S./I and in the statement of Dost Muhammad Patwari P. W. 4. is that blood was found in the cattle shed (dhari) at point No. 4 of the site‑plan. This witness has further stated that the place up to which the appellants were chased and where the encounter occurred was not shown to this witness by the P. Ws. therefore, he has not mentioned that place in the site‑plan. He also volunteered that the place where blood‑stained earth was found was pointed out by the witnesses. This witness stands corroborated by the testimony of Muhammad Ayub A. S. I. P. W. who investigated this case on this point. This police officer has admitted that he took into possession blood‑stained earth and the cartridges from within the dhari. While adverting to Exh. PC, the recovery memo regarding blood‑stained earth, we find that it was taken into possession at a distance of one qadam near the cot where Ahmad deceased was said to be sleeping at rue time of occurrence. All these pieces of evidence linked together. prove beyond doubt that Ahmad deceased was fired at while he was in the dhari and not in the process of pursuit of the culprits as stated by the complainant in the F. I. R. This state of affairs should have cautioned the learned trial Court to look into the evidence of the P. Ws. and that of dying declaration with abundant care.

It will be advantageous to mention at this stage that it is undisputed that all the witnesses to this case are inter‑connected. Zulfiqar P. W. y was employer of Ahmad deceased while Zakir P. W. 10 was tenant of Zulfiqar as well as a relation of Zulfiqar son of Kamala P. W.

11. Zulfiqar P. W. 9 and Zulfiqar son of Kamala P. W. 12, jointly owned this dhari and thus had a common interest. Similarly it is on the record that Manzoor P. W. 11 was tenant of Zulfiqar son of Kamala P. W.

12. It is also pertinent to note that Zulfiqar P. W. 12 was declared hostile as ho did not support the case of the prosecution,

10. While going through the evidence of Zulfiqar P. W. 9 we find that he has accepted in his cross‑examination that there was lot of litigation criminal as well as of civil nature between him sad the appellants. Therefore this witness cannot be called an independent witness and it would be safely assumed that he bad a motive to falsely implicate the appellants in this case. Despite his inimical relations with the appellants he admitted in his cross‑examination that all the appellants had muffled their faces with the exception of their noses and eyes. He has also conceded that the occurrence took place while it was dark. With these admissions on his part the testimony of this witness becomes highly doubtful, particularly on the point of identity. His story of living chase to the appellants has been fully belied in the light of discussion made above. Zakir P. W. 10, who is an injured witness and prima facie his presence at the spot cannot be doubted, has also considerably damaged the case of the prosecution by his various admissions in favour of the appellants. He has stated that night of occurrence was dark and has also accepted that the faces of thieves were muted up. He has also fully supported the story of chase as given by the complainant and stands discredited on this account by the evidence of Muhammad Ayub A. S. I. and that of Dost Muhammad Patwari P. W. 4, on the record. According to his statement the chase was continued for sometime and it was at that time that the thieves opened their fires on the pursuers. He went to the extent of saying that he only heard the report of fire‑arm and at that time there was darkness all around. Although he is an injured witness, yet his testimony cannot be accepted without a pinch of bait. The case of Manzoor P. W. 1 t is nut much different than these two witness who Has also damaged the case of the prosecution to all possible extent. This witness has frankly conceded that the thieves had muffled up their heads and face and the only part visible was their eyes. We wonder with this state of affairs how this witness could identify the culprits when according to him at the tome of occurrence it was darkness all around. He has also supported Zakir P.W.10 that the only heard the report of the fire-arms and cried thief theif . It is pertinent to note that both these witness Manzoor P. W. 11 and Zulfiqar son of Kamala P. W. 12, have been shown in the site‑plan, standing at a distance of 4/5 killas at the time of occurrence from the haveli of the complainant 'the statement of Zulfiqar P. W. 11 can be considered as last straw which broke the camel's back. Although closely related to the other P. Ws. and connected with the complainant party he has disowned the prosecution case in unequivocal terns by saying "some persons were committing theft of buffaloes but we could not identify the thieves." This witness was declared hostile and his statement was transferred under section 288 Cr. P. C. to the sessions file. The witness being a self condemned liar, his earlier statement will not advance the case of the prosecution in any manner when the other P. Ws. have substantially supported his second version before the trial Court. We feel no hesitation in discarding the testimony of these P. Ws. as highly unreliable as well as highly doubtful. What we are left with in this vase is the solitary statement of Ahmad deceased which has been placed on the record in the form of dying declaration Exh. PR/4, at page 14 of the Paper Book. This statement might have impressed' us as genuine if it would not have suffered with two inherent infirmities‑viz Zulfiqar P. W. 9 has admitted in his cross‑examination as under: ‑

"I told Ahmad deceased that I had made F. I. R. to the police. I had told Ahmad deceased the details of F. I. R. made by me."

This admission has gone a long way in destroying the sanctity of this dying declaration which would have beer, otherwise attached to it as a statement of a dying person who was likely to tell truth before severing his connection with the worldly affairs. This statement is further damaged by another alarming and significant admission on the part of Muhammad Ayub A. S. 1. P. W. 1 4 that: ‑

"It is correct that one Magistrate Section 30, one Magistrate First Class, Tehsildar and Naib‑Tehsildar with Magisterial powers are posted in Jaranwala. I did not make application to any Magistrate for recording the statement of Ahmad deceased, then injured."

If that was so then we do not find any reasons that why the dying declaration of the deceased was not recorded by any of these officers who were available at that very place. All these circumstances lend strength to the defence evidence led by the appellants on their behalf. A senior officer in the rank of inspector C. I. A. namely. Muhammad Yousaf has hammered the last nail in the coffin of this already spineless case of the prosecution. He has clearly stated that he appeared as P. W. 13.before the Committing Magis trate and made a statement on 17‑10‑1973 in which he stated that according to his investigation all the accused were not guilty and that the complainant party had falsely implicated them because of the dispute over the landed property. Despite elaborate cross‑examination by the A. P. P. the prosecution has failed to show that this independent witness had any motive to commit perjury in order to save the appellants although they were actual culprits. Khadim Hussain D. W. 1 (A. S I.) has pr oduced report Exh. PDB at page 27 of the Papas Book in which the appellants have been fully exonerated. This clearly goes to prove that from the very outset of the cast: it has become evident that the appellants were falsely implicated due to enmity and bitter relations on the part of the complainant party but the prosecution agency, as a measure of caution, thought it proper to refer the matter to the Court for adjudication. Wt are confident that if the learned trial Court would have taken all these points into consideration which have been subject of our discussion in the earlier part of the judgment and had seen through the inherent flaws with which the dying declaration suffered, he would have come to different conclusion, acting on the principle of safe dispensation of criminal justice we do not think it proper to warrant the conviction of the appellants on the basis of inimical, interested and highly unreliable, evidence. Even if there would have been some evidence of corroborative nature in this case, we would have conveniently brushed it aside unless and until it would have led to irresistible conclusion that the appellant were definitely connected with the commission of this crime.

11. The upshot of the above discussion is that we accept the appeal;; set aside the conviction and sentences of the appellants on all the charges levelled against them and acquit them. They shall be set at liberty forthwith if they are not required in any other case. The Murder Reference for the confirmation of the sentence of death awarded to Mohabbat appellant is hereby rejected.

Appeal allowed.