THE STATE Versus MUHAMMAD NAWAZ
JUSTICE SAJJAD AHMED SIPRA (MEMBER). --- The present criminal appeal by the State was preferred against the acquittal of the respondents named herein vide judgment, dated 25-9-1991, passed by the Justice (Retired) Ch. Muhammad Sharif, Judge, Special Court for Speedy Trial, Multan.
2. Muhammad Nawaz son of Fazal Khan, Muhammad Ajmal son of Muhammad Nawaz, Muhammad Akmal son of Nazir Ahmad, Nazir Ahmad son of Tawan Khan, Munir Ahmad son of Allah Ditta, Rustam son of Khuda Bakhsh Manzoor son of Allah Wasaya, Muhammad Aslam son of Ghulam Hussain and Muhammad Sadiq son of Ghulam Haider, respondents Nos.1 to 5. 7 to 9 and 11, respectively were tried under sections 148, 302/149, 324/149, P.P.C. whereas Manzoor Ahmad son of Umar and Ghulam Farid son of Ghulam Haider, respondents Nos.6 and 10, respectively, were tried under section 120-13/109, P.P.C. for having hatched criminal conspiracy to commit the offences aforesaid and for abetment of the same.
3. In the instant case the challan had been submitted in respect of 16 accused, but as five of the co-accused of the present respondents, namely; Ramzan, Nazar, Ghafoor, Allah Bakhsh, and Hazoor Bakhsh, were absconding therefore, their case had been separated and only the present respondents had been sent up for trial, as stated above.
4. The present criminal appeal by the State was admitted to regular hearing vide order, dated 11-11-1991, and bailable warrants issued; and in pursuance to the same all the respondents are present before the Court and are duly represented -by their respective counsel.
5. The prosecution had relied upon the following type of evidence to prove its case:
(1) Motive.
(2) Ocular evidence.
(3) Medical evidence.
(4) Recoveries of weapons from the accused.
(5) Evidence of criminal conspiracy against Ghulam Farid and Manzoor accused.
6. The learned trial Court had brought in the impugned judgment of acquittal against the present respondents as it has come to the conclusion that the motive as set up was not established, ocular and medical evidences were in conflict with each other recoveries of weapons had failed to connect the same with the commission of the crime and the allegation of abetment and criminal conspiracy against the respondents, Ghulam Farid and Manzoor Ahmad, was not proved. It has been urged on behalf of the State that the acquittal of the respondents has resulted in grave miscarriage of justice as a result of mis-appreciation of evidence of the prosecution by the learned trial Court.
7. However, before dealing with the legality and propriety of the impugned judgment it shall be appropriate to recapitulate, in brief, the facts of the present case.
8. The F.I.R. No.206/91, Exh.P.XX, of the instant case was registered on 3-6-1991 at 7-30 a.m. by the complainant, Ghulam Sadiq P.W.18 at Police Station Uch Sharif, District Bahawalpur, under sections 148, 302/149, 324/149 and 120-B/109, P.P.C. It was stated therein that after Fajar Prayer, while the complainant was smoking `Hukka' sitting at his Dera situated in the village of Bakhari, in the company of And Wadda P.W.19 and Qurban Hussain P.W.20, all the accused named therein, i.e. the present respondents and their absconding co-accused, had come to the spot while variously armed with fire arms and as a result of their indiscriminate firing Abdul Aziz, Ghulam Akbar, Iqbal and Atta Muhammad, who were sleeping on the cots on the spot, were killed and Saeed Ahmed, who- was sitting on the ground was also killed, whereas Jind Wadda and Qurban Hussain named above were injured, alongwith one passer by, Yar Muhammad. It is further stated therein that all the accused had raised Lalkara that they had avenged the murder of one Mahinwal who had been killed about 26 years ago and that as Gaman Khan, Allah Ditta and other accused in that murder case had been acquitted, therefore, the accused had nursed grievance against the complainant party and that in pursuance thereto they had murdered five persons and injured three as stated above. It was further stated in the said F.I.R. that the occurrence was in pursuance to a conspiracy hatched by Ghulam Farid and Manzoor Ahmad, who had got themselves arrested at Police Station Noshera Jadid in order to create defence to save themselves. Thereafter the police had gone to the spot, collected the, blood-stained earth, the cots and the blood-stained beddings in question and had got the injured persons medically examined and corpse of the deceased were sent for post-mortem examination. .
9. The- post-mortem examination on the dead bodies of Muhammad Iqbal and Saeed Ahmad was conducted by Dr. Mulazim Hussain P.W.11. Following injuries were observed on the dead body of Muhammad Iqbal deceased:--
(1) A black coloured fire-arm wound of about 0.5 c.m. diameter x muscle deep on the right front parietal part of the head.
(2) Two fire-arm wounds each of about 1 c.m. diameter on the right side of neck. The right carotid vessels were ruptured.
(3) Two fire-arm wounds each of about 1 c.m. diameter x cavity deep below left nipple. First was on 9th rib and the second was in between 11th and 12 ribs on the front. The pallet was removed.
(4) A fire-arm wound of about 1 c.m. x cavity deep on left upper abdomen. The corresponding exit wound was present on left side of the back.
(5) A tire-arm wound of about 1 c.m. diameter on the right side of the abdomen in the middle region. The corresponding exit wound was present on the right side of the back.
(6) A fire-arm wound of about 1 c.m. diameter x muscle deep on front of left upper arm.
(7) A black coloured wound of about 1 c.m. x muscle deep on external side of left elbow joint.
(8) A black coloured wound of about 1 c.m. diameter x 5 c.m. deep on the lower middle part of left, forearm. (Lower part near wrist joint). The exit wound was resent on the internal side.
(9) A lacerated black coloured wound of about 1 c.m. diameter x bone deep on the front of left knee joint.
Following injuries were observed on the dead body of Saeed Ahmad deceased:--
(1) A lacerated wound of about 1 c.m. diameter x bone deep on the middle of bridge of nose. The colour was black the nosal bone was broken.
(2) An inlet lacerated wound of black colour 1 c.m. diameter x cavity deep on the left side of chest.
(3) The exit lacerated wound of about 3 x 1 c.m. on the left scapula on the back. Colour of the wound was black.
(4) A black lacerated wound of about 3 x 1 c.m. on the left lungs.
According to the Medical Expert, the injuries sustained by Iqbal and Saeed Ahmad were sufficient to cause death in the ordinary course of nature.
Dr. Shaukat Ali, Medical Officer, P.W.12, had conducted the post-mortem examination on the dead bodies of Ata Muhammad, Abdul Aziz and Ghulam Akbar. The following injuries were observed by him on the dead body of Ata Muhammad:--
(1) A lacerated wound 0.5 c.m. in diameter in black colour muscle deep on the front of patella of right knee joint.
(2) A lacerated wound about 4 c.m. x 2 c.m. x muscle deep on internal side of upper part of right knee joint. It is blackish.
(3) Lacerated wound 5 c.m. x 2-1 /2 c.m. x muscle deep on the inner side of right thigh. Black in colour.
(4) A lacerated wound 0.5 c.m. in diameter on the middle of front of right thigh. It is black in colour.
(5) A lacerated wound 0.5 c.m. on the lateral side of right thigh. Black in colour.
(6) A lacerated wound 0.5 c.m. in diameter on front of left thigh
(7) A lacerated wound about 1 c.m. in diameter black in colour on back of thigh of right side.-
(8) A lacerated wound c.m. diameter on the lateral side of left thigh. Black in colour.
(9) A lacerated wound 2 c.m. x 1/2 c.m. x muscle deep on the back of left buttock. Blackish in colour.
(10) Both lower limbs are detached from body.
(11) Crushed injury below the middle of right lower leg
(12) Crushed wound in the middle of left lower leg.
(13) A lacerated wound 2 c.m. x 1/2 c.m. x muscle deep on the right buttock near anus.
(14) Ring finger of left hand crushed at matacarpal joint.
(15) A lacerated 'wound 1 c.m. in diameter on right wrist. Blackish in colour.
(16) A lacerated wound 1 c.m. in diameter on the middle of left lower arm,
Following injuries were observed on the dead body of Abdul Aziz deceased:--
(1) A lacerated wound 0.5 c.m. in diameter on the middle of nose. Black in colour. Bone deep. Nosal bone is broken. .
(2) 1/2 c.m. lacerated wound on the left side of chest in the middle of chest laterally. Black in colour. Muscle deep.
(3) A lacerated wound circular 0.5 c.m. diameter black in colour on the right side of abdomen in the middle and lateral side.
(4) A lacerated wound 1/2 c.m. diameter on left side of abdomen.
(5) 0.5 c.m. lacerated wound muscle deep. Black in colour on left upper arm.
(6) A lacerated wound 1 c.m. in diameter, black in colour, muscle deep on left buttock.
(7) A lacerated wound 0.5 c.m. in diameter, black in colour, muscle deep on left thigh.
(8) 0.5 c.m. lacerated wound, muscle deep on left knee joint.
(9) 1/2 c.m. diameter lacerated wound muscle deep on right thigh.
(10) A lacerated wound about 1/2 c.m. in diameter muscle deep on,right knee. Black in colour.
Following injuries were listed by the Medical Expert on the dead body of Ghulam Akbar deceased:---
(1) A circular gutter type wound about 4 c.m. in diameter on the upper side of left side of chest, near neck left clavical broken. Base of cartridge recovered from the wound. Broken ribs were visible.
(2) A lacerated wound about 1 c.m. in diameter on left side of abdomen below the last rib. It was blackish and muscle deep.
(3) Three exit wounds about 1 c.m. round on the back of left chest near scapula. The entrance wound is above described No.1.
(4) A 1 c.m. lacerated wound in diameter on the right side of chest on back side. Muscle deep and black in colour.
According to the Medical Expert, they received fire-arm injuries which were sufficient to cause death in the ordinary course of nature.
P.W.12, Dr. Shaukat Ali, also examined Yar Muhammad and Jind Wadda., injured and found the following injuries on the person of Yar Muhammad (given up P.W.):---
(1) A lacerated wound about 4 c.m. x 1 c.m. bone deep on the front of head. It was not bleeding. No blackening of the margin was found. Patient was conscious and was advised X-ray of skull.
(2) Another lacerated wound 0.5 c.m. around below injury No.1. Its margins were black. X-ray of skull was advised.
(3) Lacerated wound about 7 x 1 c.m. muscle deep on the lateral side of left elbow joint. No blackening was found. X-ray of the elbow was advised.
Following injuries were found on the person of Jind Wadda injured (P.W.9):---
(1) A small wound 0.5 c.m. diameter the inner side of right ankle joint. It was blackish in colour and X-ray of right foot was advised.
(2) A small wound 0.5 c.m: on the lower part of right foot, blackish in colour. It was near the big toe.
(3) A wound 1/2 x 1/2 c.m. on the inner side of left ankle joint black in colour. X-ray-of left foot was advised. .
(4) A wound 0.5 c.m. around left foot black in colour.
(5) A small wound about 1/2 c.m. in diameter on the left ankle joint.
(6) A small wound 0.5 c.m. around medial side of left ankle joint.
Dr. Muhammad Habib-ur-Rehman P.W.9, medically examined turban Hussain P.W. on 3-6-1991 at about 7-00 a.m. and found the following injuries on his person:---
(1) A fire-arm wound 8 c.m. x 4 c.m. into unload on the left lumber region. The left kidney is visible from the hole.
(2) Afire-arm wound entry and exit of which is given below.
ENTRY : Half c.m. x c.m. in the middle of back of left forearm.
EXIT : 4 c.m. x 1-1/2 c.m. bone deep on the inner side of elbow joint.
(3) A fire-arm wound entry 1/2 c.m. x 1/3 c.m. x 3 c.m. on the outer side of middle of left calf:
EXIT: 4 c.m. x 2-1/2 c.m. x 5 c.m. on the back of upper side of left arm
Distance of fire-arm: about 20 to 25 feet. Injury No.1 was found grievous and dangerous in nature.
Dr. Sohail Ahmad Baloch, P.W.10, had performed the X-rays of the deceased and the injured persons. He has proved the skiagrams and reports thereon.
10. As stated above, the present respondents were duly arrested but their five co-accused had absconded, and still remain fugitives from law.
11. The evidence in respect of the motive had been provided by the testimony of the complainant, P.W.18, Ghulam Sadiq, the injured P.W.19 Jind Wadda and the injured P.W.20 Qurban Hussain. All the said P.Ws. had stated that the accused had raised Lalkara to the effect that they had come to avenge the murder of Mahinwal. However, as noted by the learned trial Court, Ghulam Sadiq P.W.18, had stated that they were on visiting terms with the accused party after the said murder of Mahinwal in 1964 and as the parties live in the same village, it can be safely presumed that there were numerous opportunities to take revenge of Mahinwal during 27 years and that in any case the accused should have attacked the house of Gaman Khan and his companions, who were accused in the murder of Mahinwal. Furthermore, that all the accused are not connected with the said murder of Mahinwal and that as established by the defence evidence vide Exh.D.G. Abdul Ghafoor son of the said Mahinwal deceased and' Rashid Ahmad were jointly involved in he case under sections 451 and 354, P.P.C.
12. The learned counsel for the State has failed to point out anything to the contrary to rebut the obvious conclusion arrived at by the learned trial Court, under such circumstances, that the motive for the commission of the crime alleged against the present respondents remained unsubstantiated.
13. The next point to be considered, to evaluate the legality of the order of acquittal of the-present respondents is in respect of the conflict between the ocular and medical evidence on the basis of which the learned trial Court came to the conclusion that the ocular evidence is not in line with the medical evidence. The crux of the ocular evidence is that the P.Ws., namely, Ghulam Sadiq complainant P.W.18, Jind Wadda injured E.W.19, Qurban Hussain injured P.W.20 and Saeed deceased were sitting together at the place of occurrence and enjoying the smoke when the accused had appeared on the scene variously armed as detained above, and had opened fire, as a result of which the sons of the complainant Ghulam Sadiq, i.e. Abdul Aziz and Ghulam Akbar and his guests Atta Muhammad and Iqbal, who were sleeping on the cots in the compound and the deceased Saeed, who was sitting with the said P.Ws., were killed. The said P.Ws. had further deposed that the accused had opened fire from a distance of 11 to 20 feet, while causing the death and injuries as stated earlier. Whereas, according to the medico-legal reports of the deceased and the injured, almost all the injuries suffered by the deceased had blackening around them including a wad of a cartridge in injury No.1 suffered by the deceased Ghulam Akbar, and that the lower limbs of Atta Muhammad deceased were severed/detached from his body as indicated by injury No.10, thus giving rise to the only inference possible that they had been fired upon from a very close range or that the lower limbs of Atta Muhammad were detached by some explosion. The said being a reasonable inference and possibility was further strengthened by the opinion of P.W.12. Dr. Shaukat Ali, as deposed before the trial Court and which is to the effect that the wad of a cartridge can be found in the body only when the gun is fired while in contact with the body of the victim and had further stated that normally the body gets disintegrated by explosion; further conceding that it was quite possible that lower limbs of Atta Muhammad deceased were detached by some explosion as blackening was found on the lower limbs. Therefore, the conflict between the two sets of evidence i.e. medical and ocular respectively, eminently justifies the conclusion arrived at by the learned trial Court to the effect that the benefit of the same should go to the accused/respondents.
14. It may be observed here that as no empties were collected from the spot, therefore, the recoveries of weapons of offence effected could not be connected with the commission of the alleged crime and thus the same failed to advance the case of the prosecution in any manner as held by the learned trial Court.
15. The impugned judgment had been further assailed by calling in question the propriety of the conclusion arrived at by the learned trial Court to the effect that the charge of conspiracy against accused/respondents, Ghulam Farid-and Manzoor Ahmad was not proved. The said allegation is based on the statement of Ghulam Muhammad P.W.16 and Haji Ahmad P.W.17 and as regards their testimony, the learned trial Court opined as follows:--
"Having regard to the natural course of events conspiracy is a secret affair and it was not expected of the accused to have made it public or to have revealed the same in the presence of Ghulam Muhammad and Haji Ahmad P.Ws. 1n case Haji Ahmad and Ghulam Muhammad had heard this conspiracy, they would have directly gone to the house of Ghulam Sadiq to tell them about this nefarious affair. They kept silent for three days which shows that the story of conspiracy has been concocted."
It needs to be further pointed out that the learned trial Court had also taken into consideration that P.W.16, Ghulam Muhammad, had concealed relationship with the complainant, Ghulam Sadiq, and was forced to concede the same during the cross-examination, and that neither this P.W. nor Haji Ahmad P.W.17 had disclosed the factum of conspiracy to the police or to the complainant for first three days after the occurrence in question. The conclusion arrived at in respect of the charge of conspiracy as stated above, does not suffer from any illegality, as the said conclusion is the only one reasonably possible on the basis of the evidence brought on the record in support thereof.
16. Therefore, in view of the aforesaid discussion, we are of the view that the trial Court had given very valid and cogent reasons for the acquittal of the respondents herein. The learned counsel for the appellant failed to point out that any material piece of evidence had been ignored or misread or that any accepted principle applicable to the appraisement of evidence had been violated or the finding of acquittal arrived at by the learned trial Court in respect of the present respondents was not reasonably possible to arrive at because of the facts and circumstances of the case as brought on the record by the prosecution through its evidence. It is a very well-established principle of law, that the appellate Court will not interfere with acquittal unless it is a conclusion which no reasonable person could conceive or it is found to be wholly artificial, shocking and ridiculous. Our system of administration of criminal justice is based on the well-accepted presumptions, firstly, that unless found guilty, the accused is innocent, and secondly, that once the accused is acquitted by a trial Court, his assumption of innocence stands confirmed; and on the further equally well-established principle that the acquittal of an accused will lose both of the aforesaid presumptions only if his acquittal was based on disregard of material evidence or misreading of such evidence or on evidence that was legally not admissible. No interference with an acquittal can take place merely for- the reasons that the re-appraisal of the evidence by the appellate Court may lead it to a conclusion different from the view expressed by the trial Court, if both the conclusions are reasonably possible on the basis of the evidence on the record; and interference with acquittal shall only take place in exceptional cases, where a contrary view is irresistible on the basis of overwhelming proof.
17. Pursuant to the above discussions, we find no merit in the present criminal appeal preferred against the acquittal of the respondents by the State, therefore, it is hereby dismissed. The respondents are on bail. Their bail bonds stand discharged accordingly.
N.H:Q./32/SAC
Appeal dismissed.