GHULAM HAIDER Versus STATE
1. SAJJAD ALI SHAH, J.-- -Appellant named above and his five confede rates, namely Dur Muhammad, Nazir, Khan Muhammad, Anwar Ali and Sher. Khan were tried by learned Sessions Judge, Nawabshah for murder of Noor Ahmad and vide his judgment dated 14-5-1977 appellant was con victed under section 302, P. P. C. and sentenced to death, while the other five co-accused were acquitted. In the connected case appellant "as convicted under section 13-D of the Arms Ordinance and sentenced to R. I. for one year. Appellant has filed this appeal against his convictions and sentences aforementioned and there is also reference before us for confirmation of death sentence and we propose to dispose of both by a single judgment.
2. After hearing the learned Advocates for both the parties, we had allowed the appeal by a short order on 22-10-78 and the reasons follow now.
3. It would not be out of place to mention here that in F. I. R. six persons named above are shown as accused but during the investigation Sher Khan was let off by police, while the remaining five including appellant were challaned. Complainant not being satisfied with this development, filed a private complaint naming all six as accused persons and the learned trial Court consolidated proceedings of both cases as they related to the same incident and involved the same common evidence.
4. Shortly stated prosecution story is that on 26-8-1975 in the morn ing deceased Noor Ahmad, his father Morand complainant and other two relatives namely Ali Nawaz and Umer went together to Nawabshah City for some work and in the evening of the same day came back in a bus and alighted therefrom at the bridge of Abul Hassan Minor. Deceased walked ahead while his companions sat down to wash their faces and in the meantime six persons identified to be appellant and his five associates named above emerged from borrow-pits nearby and challenged the deceased saying that it was the last day of his life and he would not be spared. Sher Khan was armed with a revolver, Dur Muhammad and Ghulam Hyder had pistols, while the rest were armed with guns. At the instigation of Sher Khan, appellant Ghulam Hayder and Dur Muhammad went near Noor Ahmad and fired at him from their pistols. Noor Ahmad fell down injured and died. Complainant and P. Ws. Ali Nawaz and Umer, who saw the incident raised cries and challenged the assai lants but they were threatened that they would be killed if they came near. Declaring that they had taken revenge from Noor Ahmed for causing injuries to their relative Adil, the assailants made good their escape. Subsequently complainant and P. Ws. Ali Nawaz and Umer went near and found Noor Ahmad lying dead due to fire-arm injuries on his neck and back-side of the chest. Leaving P. Ws. Ali Nawaz and Umer at the vardat to guard the dead body, complainant Morand repaired to the Police Station, Daulatpur, which is at a distance of 30 miles from the spot, where F. I. R. was registered on the following day at 4 a. m. Motive is stated in F. I. R. to be the fact that two years before the incident one Adil Lashari received injuries, in which case deceased Noor Ahmad and one Rehmat Ullah Ghalloo were challaned but were subse quently acquitted, hence the assailants wanted to take revenge from the deceased.
5. P. W. 8 Muhammad Maroof A. S. I. who recorded F. I. R. came to the scene of offence and saw the dead body of Noor Ahmad. He secured blood-stained earth and put it into a sealed parcel. He secured one empty cartridge from the vardat and sealed it into a parcel. He prepared such mashirnama. He prepared inquest report and sent the dead body for post-mortem examination. He recorded statements of P. Ws. Muhammad Umer and Ali Nawaz at the spot. He searched houses of appellant Ghulam Haider and co-accused Dur Muhammad but found nothing incriminating. On 29-8-1975 he arrested appellant Ghulam Hyder and Dur Muhammad. Appellant Ghulam Haider, while in custody led to the recovery of one country-made pistol and two live cartridges from the iron-pipe lying in his house, which were seized. The pistol was made into a sealed parcel. He arrested acquitted accused Nazar Lashari but secured nothing from him. Then he went to Police Station, Daulatpur where F. I. R. against appellant Ghulam Hyder was registered for offence under section 13-D of the Arms Ordinance by him as com plainant as appellant did not have licence for the possession of pistol recovered from him. Thereafter he handed over the investigation to S. H. O. Nazeer Hussain, who verified the progress of the investigation, had statements under section 164, Cr. P. C. of P. Ws. Muhammad Umer, Abdul Ali and Ali Nawaz recorded on 2-9-1975 before Civil Judge, and F. C. M., Moro. On 6-9-1975 be arrested acquitted accused Khan Muhammad and Anwar Ali but secured nothing from them. On 8-9-f975 appellant Ghulam Hyder expressed willingness to confess, so he sent him to Mukhtiarkar and F. C. M., Moro for that purpose. On 9-9-1975 he arrested acquitted accused Sher Khan and let him off on 13-9-1975 as per opinion of S P., Nawabshah. Subsequently he challaned remain ing five accused including appellant but excluding Sher Khan. This Investigating Officer has also produced report of chemical examiner Exh. 28, which is to the effect that earth sent to him was stained with human blood and report of ballistic expert Exh. 29 which is positive to the effect that crime empty had been fired from the pistol recovered from appellant Ghulam Hyder.
6. Prosecution examined in all 10 witnesses in support of its case. P. W. 1 Morand complainant, P. W. 2 Ali Nawaz and P. W. 7 Umer have been examined as eye-witnesses. P. W. 3 Abdul Kadir is mashir. P. W. 5 Karim Bux Constable is corpse-bearer. P. W. 6 Muhammad Sallar is tapedar who prepared sketch of vardat Exh. 19 on 15-12-1976. P. W. 9 Mr. Muhammad Ishaq Channa had recorded judicial confession of appellant Ghulam Hyder Exh.
24. P. W. 8 Muhammad Maroof and P. W. 10 Nazeer Hussain are police officers, who have investigated the case. P. W. 4 Dr. Abdul Karim performed post-mortem examination on the dead body on 27-8-1975 as Incharge Medical Officer, Moro. On examination he found the following external injuries :-
(1) One punctured wound 1" in diameter discharged from the fire-arm with margins inverted, and blackening going down wards and medially into throat , cavity over the right side of the neck.
(2) A punctured wound 1 inch diameter discharged from the fire arm with margins inverted and blackening present, over the middle part of the back of the left side of the chest.
7. On internal examination the doctor found the following damage :-
8. (!) Membrane of the brain were congested.
(2) 5th and 6th ribs were fractured posteriorly on the left side of the back of the chest.
(3) The chest cavity was full of blood, from where a few pellets were removed.
(4) The left pleura of the long was reptured in the middle part of the left side of the back of the chest.
(5) The laryix and traechea were congested.
(6) Left lung was raptured at the middle lobe over the back of the left side of the chest.
(7) Pericordium was congested-and also the left side of the heart was slightly congested. Blood vessels were also congested. The stomach contained semi-digested food paste.
9. From the external as well as the internal examination on the dead body, the doctor was of the opinion that the death was due to shock and haem3rrhage consequent upon injuries Nos. 1 and 2, which appeared to have been caused by discharge of the fire-arm, such as gun or pistol. According to the doctor the injury No. 2 was individually sufficient to cause death in the ordinary course of nature. The doctor further opined that the death was instantaneous. The doctor also said that the deceased must have taken his last meals about 2 or 3 hours before his death.
10. In his statement under section 342, Cr. P. C. appellant has denied the allegations of the prosecution. He has denied having produced his un licensed pistol as weapon of crime., He had retracted from his confession and stated that it was not voluntary as he had given the same under the pressure of police. It was further stated by him that prosecution witnesses had deposed against him due to enmity on account of land matters. Appellant did not examine any witness sin defence.
11. We have very carefully examined the whole record in the light of arguments of the learned counsel appearing for both parties. We agree with the finding of the trial Court that eye-witnesses are not worthy of reliance as they were highly partisan and interested witnesses and the material contradictions in their evidence make their presence at the spot at the time of incident very doubtful. Admittedly complainant Morand is father of deceased, while P. W. Ali Nawaz is brother of wife of deceased. P. W. Umer is nephew of complainant. It is the case of prosecution that all these eye-witnesses had accompanied deceased to Nawabshah for some work on the day of incident but as to what this work was is not disclosed in F. I. R. Subsequently at the trial in order to explain this mysterious get together these witnesses have contradicted each other on this point so much that instead of furnishing a reasonable and convincing explanation, their conflicting statements tend to show that they were not with the deceased, at the time of incident. Complai nant has stated before the Court that his son Noor Ahmad deceased had gone to Nawabshah to purchase medicines, as he was practising on the medical side but no medicines were recovered from the spot after the incident. Complainant had further stated that P. W. Umer had come to Nawabshah to purchase cloth but no cloth was purchased by him. For himself the complainant had deposed before the trial Curt that he had come to Nawabshah to obtain stay order in a Civil case but this was not mentioned in F. I. R. P. W. Ali Nawaz has stated in his examina tion-in-chief before the trial Court that he, complainant Morand P. W. Umer and deceased had come to Nawabshah to attend the civil Court as there was a water dispute and he had attended the Court on behalf of his nephew Ghulam Mustafa. In the cross-examination he improved his statement by saying that he and Murand had work in civil Court, while Noar Ahmad had to purchase some medicines and Umer had his own business in the town. In his statement under section 164, Cr. P. C. he had stated that he had come to Nawabshah with complainant and others as he had his own work. P. W. Umer has deposed before the trial Court that all they had come to the civil Court as they had some work there. In the cross-examination he has stated that he had to purchase the cloth and in fact he purchased cloth worth Rs. 100 which was available with him at the time of incident. This is not endorsed by any other wit ness. In his statement under section 164, Cr. P. C. he has not stated about the purchase of cloth. Furthermore according to these witnesses they and deceased had lunch together and then went to Daur where they had some work and from there they boarded bus to come home. In the bus there were so many L3sharies known to them but could name none. This is denied by complainant in the trial Court.
12. Now about the actual occurrence complainant has stated in F. I. R. that Sher Khan was armed with revolver, Dur Muhammad and Ghulam Hyder were armed with pistols while the remaining accused had guns. They challenged Noor Ahmad that it was his last day and they would take revenge of their relative Adil, then at the instigation of Sher Khan, Ghulam Hyder, Dur Muhammad and others ran and fired at Noor Ahmad. After Noor Ahmad fell down others fired in the air and threatened witnesses not to come near. This version is modified by complainant in the trial Court and he has curtailed the general attack of all to the firing of pistol shots by accused Ghulam Hyder and Dur Muhammad at deceased. P. W. Ali Nawaz in his statement before the trial Court does not say about firing in the air but he specifically mentions that accused persons fired at the witnesses also but luckily tie witness was hurt. In his cross-examination this witness further states that both appellant Ghulam Ryder and acquitted co-accused fired one shot ach at Noor Ahmad from a distance of two paces and then went away. He does not talk about shots fired at witnesses. P.W. Umer in his deposition does not talk about firing in the air or at the witnesses. In his cross-examination he claims that only Sher Khan instigated while other accused did not say anything. He was confronted with his Police statement in which he had stated that all the accused had challenged the deceased collectively that they would not spare him and take the revenge of their relative Adil. He had also deposed that in his presence no accused loaded his fire-arm.
13. These witnesses have apparently tried to be consistent about the fact that both Ghulam Hyder and Dur Muhammad at the instigation of Sher Khan ran towards Noor Ahmed and fired at him from the same direction. They are belied by the medical evidence according to which deceased had sustained two wounds caused by fire-arm one over the right side of the neck and the other over the back of left side of the chest, Now both these injuries are located on the opposite sides of each other and could not have been caused by two persons firing simultaneously froth the same direction.
14. There appears to be some delay in filing F. I. R. Incident took place at 6 p.m. and report was lodged on the following day at 4 a. m. when the distance between spot and Polic3 Station is 30 miles. It is in the evidence that immediately after incident complainant left for police station but deliberately not stated as to why what mode of transport he wept to police station where he reached at 4 a. m. In the absence of plausible explanation 10 hours can be considered as adequate delay which can be used to manipulate the case.
15. For reasons stated above, the evidence of eye-witnesses does not inspire confidence and is not fit for reliance. The story about their journey with deceased to Nawabshah as stated by them strikes us as very doubtful and even their presence at the snot and claim of seeing the incident is most improbable. As such the trial Court has rightly refused to rely upon ocular testimony.
16. The trial Court has given benefit of doubt to five accused persons and acquitted them for the reason that direct evidence was doubtful and no incriminating articles were recovered from them. The trial Court has convicted the appellant on the basis of his judicial confession which is retracted by him supported by recovery of his pistol and positive report of ballistic expert that crime empty was fired from that pistol and evidence of motive.
17. We reject judicial confession of appellant Ghulam Hyder and rule out its consideration for the reasons firstly that it is retracted and does not appear to be truthful and voluntary. Appellant Ghulam Hyder was arrested by P. W. 8 Muhammad Maroof, Investigating Officer on 29-8-1975 and his judicial confession was recorded on 8-9-1975 i. e. after 10 days of his arrest and during this whole period he remained in police custody. It is borne out by the record that on the day of his arrest appellant Ghulam Hyder allegedly produced his pistol before the police and after that there does not appear to be any justification for police to retain his custody for 10 days, which cannot be for any other reason except to pressurize him for judicial confession. In his statement under section 342, Cr. P. C. appellant retracted from his confessional statement and stated that it was extorted from him under pressure of police. Secondly in the confession an entirely different story is given from chat of the prosecution case. Even the scene of offence is not the same. Thirdly confession does not find support from the other evidence collect ed by the prosecution, hence it remains uncorroborated. In confession it is said that appellant fired first shot from his pistol at the deceased, when both were still in the bus and the deceased after being injured fell out from the bus and the appellant fired second shot at him outside the bus. Sketch of vardat shows that dead body was seen lying at a place which is 145 feet away from bridge over Abul Hassan Minor, where deceased is said to have got out from the bus. According to the prosecution case deceased and eye-witnesses got down from the bus at the minor and walked towards their village when on the way attack was made. Eye-witnesses are not mentioned in the confession. If the confessional statement is to be treated as truthful then part of the incident took place in the bus, hence there should be blood stains in the bus. Passengers of the bus should have been examined as eye-witnesses because they were natural witnesses but this is not the prosecution case at all. According to the confession appellant was arrested on the following day of the incident t. e. 27-8-1975 which is two days earlier than the date of arrest shown by the police. Confession also does not say that appellant produced pistol which was concealed in iron pipe lying in his house. Confession, therefore, does not find support from prosecution evidence in any circumstance.
18. After the exclusion of judicial confession, there is left hardly any evidence of incriminating nature worth further consideration. We also feel inclined to hold that even recovery of unlicensed pistol from the exclusive possession of appellant is not proved, because as alleged it was recovered from iron-pipe lying in the house of appellant, which was in habited by other members of family, hence the place of so-called conceal ment ass accessible to all members of the family.
19. Additional reasons which dissuade us from relying upon this piece of evidence are as under :--
(1) Complainant is uncle of mashir of recovery, Abdul Kadir. Second mashir is also caste-fellow of the complainant.
(2) Appellant previously was hari of mashir Abdul Kadir. He left him and started cultivating lands of acquitted accused Anwer.
(3) There is no mention of crime empty in F. I. R.
20. Lastly about motive, we would like to say that complainant Morand and other eye-witnesses have said enough to conclude that deceased had married Mst. Subhan Begum who was previously wife of brother of Soomar Dabri, with whom deceased had strained relations and had filed a case against Soomar and others, hence possibility cannot be ruled out that it was an un-witnessed crime and deceased might have been killed by that party and appellant and others were framed in this case. Com plainant has further admitted that he had filed one other case of injuries against appellant Ghulam Hyder, Dur Muhammad and Haroon, which was pending in the Court of IInd Additional Sessions Judge, Nawabshah. This shows that relations between the parties have background of solid enmity. In such circumstances we hold that prosecution has failed to prove its case against the appellant and we give benefit of doubt to him and set aside his convictions and sentences. In the result appeal allowed and the reference for confirmation of death sentence is rejected.
21. Appeal allowed.