THE STATE Versus ALTAF
JUSTICE ABDUL MAJID TIWANA (MEMBER). --- State has filed, this appeal under section 13 of the Special Courts for Speedy Trials Ordinance, 1991, against the judgment, dated 23-5-1992, by which the learned Judge of Special Court for Speedy Trials, Multan, had acquitted Altaf Hussain, Nazar Khan and Gulzar Ali accused/respondents (hereinafter referred to as the acquitted accused) of the charge under section 392/302, P.P.C. and under section 17 of Ordinance VI of 1979.
2. The facts of the case leading up to this appeal are that on 15-3-1991 'Truck No.1IT 5195 being driven by Abdul Qayyum complainant and Shah Murad (deceased), turn by turn, conducted by Fateh Khan P.W. as Cleaner carried crushed stone from Pull-11, District Sargodha, towards Chowk Sarwar Shaheed. Abdul Qayyum drove it up to Ahmadpur Sayyal, a town in District Jhang, and then came the turn of Shah Murad (deceased) for onward journey. Abdul Qayyum complainant went to sleep on a seat behind the driver's seat, while Fateh Khan Cleaner slept in the cabin. On 16-3-1991 at 1-45 a.m. when the vehicle being driven by Shah Murad (deceased) reached at a distance of about six miles from Rangpur, someone fired at it from the road side as a result of which its window panes were broken and it stopped. Abdul Qayyum complainant woke up and saw two persons, whom he later described in the F.I.R., standing by the side of the truck. One of them, who was armed with a pistol, climbed up and on pistol point robbed him (Abdul Qayyum complainant) of Rs.1,800 and Sieko-V wrist-watch worth Rs.2,000. The second person, who was standing near the driver seat, fired at Shah Murad, hitting his head, as a result of which he died instantaneously. The third culprit, who stood on the road side, also fired but his shot did not hit anyone. Then all the three culprits went away.
3. Abdul Qayyum complainant drove the truck with the dead body of his co-driver and Fateh Khan Cleaner to Police Station Chowk Sarwar Shaheed and lodged the report. On his statement; case F.I.R. No.26, dated 16-3-1991, was registered under the aforesaid provisions of law. After the registration of the case, the police took the dead body of Shah Murad in the same vehicle to the Civil Hospital, Kot Addu, where Dr. Ghulam Abbas (P.W.2) conducted its post-mortem examination. He noticed 8 lacerated wounds on the left side of head and neck, one lacerated wound near the left nipple and one lacerated wound on the right wrist, all caused by a fire-arm. As a result of the head injuries, brain matter was badly crushed under the impact of pellets penetrating into the skull and these injuries, according to the medical expert, were sufficient in the ordinary course of nature to cause death.
4. Meanwhile S.H.O. Ghulam Yasin (P.W.9), organising a track party, went to the spot. From there he picked up two empties of .12 bore cartridges, a few pieces of broken window panes and certain blood-stained pieces of the broken seat of the driver. With the help of Muhammad Shari tracker P.W., he prepared six moulds of footprints near the spot and with his assistance he started following the footprints of the three culprits and ultimately reached Dera Haibat. The police party went to the nearby Basti where it found all the three acquitted accused present in a `Baithak'. They were identified by Abdul Qayyum complainant and Fateh Khan Cleaner P.W. From the possession of Altaf acquitted accused he seized a pistol alongwith a few bullets and currency notes of Rs.1,800, the stolen money of Abdul Qayyum complainant. From the possession of Nazar Khan acquitted accused he seized a gun and Sieko-V wristwatch of the complainant. From Gulzar Ali acquitted accused he recovered a gun and a few cartridges. After effecting these recoveries and recording the statements of P.Ws. under section 161, Cr.P.C. he formally arrested the three acquitted accused and after the completion of investigation, sent them up for trial.
4-A. The case was eventually entrusted to the Special Court for Speedy Trials, Multan.
5. On the commencement of trial in that Court, the acquitted accused were charged for the robbery-cum-murder of Shah Murad driver of the truck, punishable under section 302/392, P.P.C. as also for committing `Haraba' punishable under section 17 of Ordinance VI of 1979. On their pleading not guilty, the prosecution led evidence against them by producing as many as 9 witnesses.
6. To be a little more precise, Dr. Ghulam Abbas Medical Officer (P.W.2), who had conducted the post-mortem examination on the dead body of Shah Murad, after giving the details of 12 injuries found on it, proved the post-mortem report (Exh.P.B.) and the diagrams of injuries (Exh.P.B./1). The gist of his statement has already been given.
7. Muhammad Shafi (P.W.6), who claimed himself an experienced tracker, deposed that during the night of occurrence he was called by the police and taken to the spot where he prepared 6 moulds from three foot-prints of the culprits spotted out by him and following the foot-prints when he, as a member of the police party, reached Dera Haibat the tracks disappeared. According to him, there he saw S.P. and the D.S.P. already present and the police encircled a small Basti situated at a short distance from Dera Haibat, as a consequence of which two persons, identified as Altaf Hussain and Nazar Khan accused in this case, were apprehended while their third companion fled away. He deposed that the police recovered a gun and six live cartridges from Nazar Khan accused and a revolver besides Rs.1,800 from Altaf Hussain accused. He, however, denied having been present at the time when recovery was effected from Gulzar Ali accused though he had admitted his signatures on the seizure memoranda. He testified that the accused had been identified by the complainant.
8. Muhammad Ramzan (P.W.7) was a member of the police party. He deposed that all the three accused were apprehended from the `Baithak' of Altaf Hussain accused at Dera Haibat where the tracks of the culprits, being followed by the police party with the help of Muhammad Shafi tracker, had led to and the stolen articles besides certain arms were recovered from them.
9. Abdul Qayyum complainant (P.W.8), after reiterating the facts stated by him in the F.I.R. further deposed that the police party, of which he was a member, followed foot-prints of the culprits from the spot to a house with the help of two trackers where the S.P. and D.S.P. had also come and in the `Baithak' of that house all the three accused were found present and were arrested on his identification. He further deposed that the police recovered revolver and Rs.1,800 alongwith a handkerchief from Altaf Hussain accused, and a gun and his wrist-watch from Nazar Khan accused and a gun from Gulzar Ali accused.
10. The last witness was Ghulam Yasin Inspector/S.H.O. (P.W.9). He gave details of the investigation. He deposed that after the registration of the case and sending the dead body to the mortuary for post-mortem examination, he summoned Muhammad Shafi tracker and, after going to and taking on the spot proceedings, followed - the tracks with his help. According to him, Muhammad Shafi tracker once lost the tracks and he summoned Allah Wasaya tracker with whose help the police party went to the `Baithak' of Altaf Hussain accused where all the three accused were present and were taken into custody after having been identified by Abdul Qayyum complainant and Fateh Khan Cleaner as the culprits. He gave the details of the recoveries. On the completion of investigation he submitted the challan against the accused, he added.
11. Rest of the prosecution witnesses were formal and their testimony needs no detailed mention.
12. On the completion of prosecution evidence, the learned trial Judge examined the accused under section 342, Cr.P.C. but they denied all the incriminating circumstances figuring against them in the prosecution evidence and, alleging their false implication, professed innocence. They did not produce defence, nor did they make any statement on oath under section 340(2), Cr.P.C.
13. It was argued on behalf of the State that at the time of occurrence Abdul Qayyum complainant, who was the co-driver of the deceased, regarding whose presence there could be no doubt, had seen the acquitted accused firing at the truck and had duly identified them with the help of the head lights of the vehicle and when the police, with the help of the tracker, went to the `Basti' situated near Dera Haibat, he duly identified all the three accused who had committed murder of Shah Murad with a view to commit robbery and actually robbed him (complainant) of the money and the wrist-watch. According to the learned State counsel, there was no animosity or ill-will between Abdul Qayyum complainant and the acquitted accused and the former, being an independent witness by all standards, conviction of the latter could be based on his testimony which stood duly corporated by the statement of Muhammad Shat tracker and Muhammad Ramzan (P.W.), who had also deposed about the recovery of the stolen articles, particularly when the empties picked up from the spot stood wedded with the guns recovered from the acquitted accused. He contended that there were minor discrepancies amongst the statements of the prosecution witnesses on certain points but the same were ignorable being natural. In his opinion, the acquitted accused had wantonly killed an innocent person on the highway only for the sake of money and they needed to be convicted and sentenced for murder-cum-robbery.
14. After considering the arguments addressed at the bar and perusing the record, we are of the view that the respondents were rightly acquitted by the 'trial Court on the benefit of doubt. It is prosecution's own version that Abdul Qayyum complainant, the only eye-witness examined at the trial, was sleeping in the moving vehicle being driven by his co-driver when it was fired at. From his statement it is not clear as to whether the Shah Murad (deceased) was fired at when the vehicle was moving at its normal speed or he was hit and fatally injured when the vehicle had stopped, or it was first intercepted by the culprits and when it came to a standstill, then it was fired at. In any case, he did not see nor he could see as to who had fired the first shot at the vehicle because at that time he was asleep. He could see that had happened after he was awakened by the gun fire but soon he was worrying for his own life and property as one of the assailants, after climbing up the vehicle, was on his head with a pointed weapon, to whose threats and demands he readily yielded. Though he claimed that he saw Nazar Khan acquitted accused firing at Shah Murad (deceased) with his gun, hitting on the left side of his head when he (victim) looked towards Altaf Hussain acquitted accused and turned his face towards him, but it is doubtful that he (complainant) could see so attentively all that soon after he had been awakened from the deep slumber and stood bamboozled by the ghastly scene. His description of the occurrence even otherwise does not fit in if the same is seen in the light of medical evidence. Shah Murad (deceased) was on the wheels of a right-hand-drive vehicle. His exit was obviously on the right side and if he had been shot at when the vehicle was still moving and it hit him after breaking the window panes of the right exit, then he could possibly be hit on the right side and he could not suffer fire-arm injuries on the left side of his head unless the shot had been fired from his left side or the pellets had pierced through the wind screen of the vehicle or he had virtually pushed his head outside from the window of the door to look at some body towards the rear of the vehicle. But this could not be the situation because the windowpane of the door appeared to be closed at the time of occurrence and for that reason it was broken under the impact of the shot. So he could not take out his head from the window in that situation. This fact also goes a long way to show that Abdul Qayyum did not see the occurrence and whatever he stated in the F.I.R. and later deposed at the trial was only a guesswork. He stood also contradicted on the point of moonlit night, about which he deposed, while in fact during the night of occurrence the moon was on its last legs being the last week of the lunar month and there could be no moonlight.
15. We are also inclined to agree with the findings of the learned trial Judge that Muhammad Shafi tracker impaired the prosecution case beyond repair. He had categorically deposed that when the track party reached near Dera Haibat, he had lost the tracks and the police had called in aid another tracker. The second tracker was neither cited as a prosecution witness nor he was produced. He further deposed that the `Basti' situated at a short distance from Dera Haibat was encircled by the police under the orders of S.P. and D.S.P., who had meanwhile reached there, and out of the three accused, two were apprehended and the third had made good his escape, while on this fact Abdul Qayyum complainant and Inspector/S.H.O. Ghulam Yasin deposed that they had apprehended all the three culprits in the `Baithak'. This is a material contradiction and cannot be lightly ignored.
16. Another fact which continues to agitate our mind is as to how Ghulam Yasin Inspector/S.H.O. managed the immediate presence of Muhammad Shaft tracker at the odd hours of the night at the spot situated at a distant place, spotted out a few foot-prints near the place of occurrence during the dark night with the help of a torch, got prepared six moulds with the help of the tracker, then proceeded to follow the tracks and reached Dera Haibat at early hours of the morning, where the S.P. and D.S.P. were already present, having reached there at about morning-prayer call? Curiously enough, all it happened during the span of two or three hours.
17. By the reappraisment of various relevant facts and material events, we find that the conclusion reached by the learned" trial Judge was neither unreasonable or shocking, nor perverse or ridiculous, by the standard laid down in Ghulam Sakindar and another v. Mamraz Khan and another P L D 1985 SC 11 for the interference by the appellate or revisional Court in the findings of acquittal recorded by a trial Court.
18. For various reasons stated above we are not inclined to call the acquitted accused for a contest in this appeal and the same is dismissed at the limine stage.
N.H.Q./48/SAC
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