1994 P Cr (PLP)

RASHID AZIZ KHAN, J.

Mahmood Ahmad (15), Iftikhar Ahmad (17) alongwith Muhammad Yaqoob (60), Ghulam Rasool (26), Arif Ali (15) and Shaukat Ali (20) were sent up for trial by Police Station Chak Jhumra. District Faisalabad, for an offence under section 302/307/34, P.P.C. Judge, Punjab Special Court for Speedy Trials, Faisalabad, vide his judgment, dated 29-11-1988 gave benefit of doubt and acquitted Muhammad Yaqoob, Ghulam Rasool, Arif Ali and Shaukat Ali. Mahmood Ahmad and Iftikhar Ahmad were, however, found guilty for an offence under section 302/34, P.P.C. and each of them was sentenced to death with a fine of Rs.25,000, or in default five years' R.I. It was further directed that the fine, if recovered, shall be paid to the legal heirs of deceased Khalid Latif Both of them were further convicted under section 307/34, P.P.C. and each of them was sentenced to ten years' R.I. with a fine of Rs.10,000, or m default two years' R.I. each. Both the convicts have filed separate appeals. Complainant has filed a Revision seeking enhancement of fine and awarding of compensation. All these matters will be disposed of by this judgment.

2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.D. lodged by Falaksher, was that he was employed in Police Department and was posted as Naib-Court in the Court of A.C., Jarranwala. On 28-4-1988, being Thursday, he came to his village to spend the week-end. There was party faction of the complainant side in the village with Muhammad Yaqoob. On 28-4-1988 at about 8-30 p.m, first informant with Khalid Latif, his cousin, was going to see off Muhammad Asif, their friend, to his house because of enmity. When they reached Chowk Maulvi Abdullah, Iftikhar armed with .7 mm rifle, Mehmood Ahmad with .12 bore gun, Arif Ali with revolver, Shaukat Ali armed with .12 bore gun, emerged from the Verandah of Abdullah, who were identified in electric light. Muhammad Yaqoob and Ghulam Rasool raised Lalkara that Asif and others should be taught a lesson for having escaped in the rape case of Faujan Bashiran. Iftikhar tried to fire but Asif caught hold of barrel of his gun, and in the scuffle Iftikhar fired, which hit said Asif below his chest. First informant and Khalid Latif stepped forward to hold Asif, whereupon Shaukat Ali fired hitting Khalid Latif on his back, therefore, Khalid Latif and Asif fell down. Iftikhar fired with his rifle hitting Khalid Latif. Melunood Ahmad fired his gun which hit Khalid Latif on his back. Arif fired three shots with his revolver at the first informant, which proved ineffective. The commotion attracted Muhammad Munir and Muhammad Rafique, who also witnessed the occurrence. The assailants, in the meanwhile, ran away. Motive for the occurrence was that about 9/10 months before the occurrence, Muhammad Yaqoob had obtained a false, medical certificate of one Faujan, a Christian lady, about rape and wanted to have a case registered against Asif and Saeed, brother of the first informant but failed. Yaqoob felt insulted, therefore, the present occurrence. Khalid Latif died at the spot. Complaint Exh.P.D. was lodged by Falaksher, P.W.10, at 10 p.m. on 28-4-1988. It was recorded by Barkhurdar Ahmad, Inspector/S.H.O. P.W.12, at Sarfatoo Jhal, on the basis of which formal F.I.R. Exh.P.D./1 was recorded the same day at 10-30 p.m. by Muhammad Aslam, Moharrir/H.C., P.W.5, with regard to an occurrence which took place on 28-4-1988 at 8-30 p.m. at Chowk Moulvi Abdullah in village 156/R.B., 11 miles from Police Station Chak Jhumra. , Barkhurdar, Inspector/S.H.O., P.W.12 after recording statement Exh.P.D. sent the same for registration of a case and himself went to the spot. He prepared injury statement Exh.P.K. and inquest report Exh.P.K./1 of deceased Khalid Latif and sent the dead body to mortuary. He collected blood stained earth from the spot vide memo. Exh.P.H. He also secured an empty of .7 mm rifle, which was taken into possession vide memo. Exh.P.I. He got the memos attested from the witnesses. He went to the hospital and prepared injury statement Exh.P.W.2/A of Muhammad Asif, P.W., and thereafter got him medically examined. He recorded the statements of the witnesses. On 12-5-1988, he arrested Muhammad Yaqoob from the Sessions Court. On 20-5-1988, he arrested Ghulam Rasool accused from outside the Sessions Court. Iftikhar, Arif and Shaukat were arrested on 22-5-1988, from the Dera of Muhammad Yaqoob accused. He arrested Mehmood Ahmad, accused on 1-6-1988 from outside the Sessions Court, Faisalabad. Iftikhar accused while in custody on 22-5-1988 got recovered .7 mm rifle P.4 from his house vide memo. Exh.P.G. On the same day, Arif accused while in police custody, got recovered pistol P.3 from his house vide memo. Exh.P.F. On 7-6-1988, Mehmood Ahmad, accused, got recovered .12 bore gun P.5 from a cattle-shed of his Dera, which was taken into possession vide memo. Exh.PJ. All the memos were got attested from the witnesses. After usual investigation, he submitted the challan. Dr. Iqbal Ahmad Javed, S.M.O. R.H.C. Chak Jhumra, P.W.1, on 29-4-1988 at 11-30, conducted the post-mortem examination on the dead body of Khalid Latif, deceased, and found the following injuries:- (1) An obliquely lacerated wound of fire-arm of entrance on the back surface of the right side of the chest, quite adjacent to mid line, 4 inches below the back of the base of the right side of the neck 5-1/2 inches x 2 inches x probe passed obliquely into the chest cavity. The edges of the wound were inverted and ecchymosed, blackened and scorched, the wound was also blackened and scorched. A corresponding hole was seen in the shirt, which was blood stained and burnt also. (2) A circular, lacerated, wound of fire-arm of 'entrance, on the back surface of the right shoulder and adjoining portion bf back of the right side of the chest, 1 inch above the back of the right armpit, 4 inches below the top of the right shoulder, 1 inch x 1 inch x probe past into the chest. The edges were inverted and ecchymosed, blackened and scorched. A corresponding hole was seen in the shirt. (3) Five, circular, lacerated, wounds of fire-arm of entrance, each 1/4 inch x muscle deep, only superficially, two on the back of the base of the left side of the neck, one at the top of the left side of the neck, one at the top of the left side of the chest, one on the upper part of the left side of the chest 2-1/2 inches above the injury No.l and one at the back surface of the uppermost part of the right side of the chest, 1-1/4 inch above the injury No.l in a diameter of 7 inches x 4 inches. The edges were inverted and ecchymosed. Corresponding perforations were seen in the shirt, which was blood-stained. In his opinion, death had occurred due to shock and haemorrhage because of injuries Nos.1 and 2, which were sufficient to cause death in ordinary course of nature. All the injuries were caused with fire-arm and were ante-mortem. Dr. Abdul Sattar, M.O., D.H.Q. Hospital, Faisalabad, P.W.2, on 28-4-1988 at about 10-20 p.m. medically examined Muhammad Asif and found the following injuries:- (1) A lacerated wound with blackened edges 5 c.m. x.1 c.m. x muscle deep, 2-1/2 on below the right nipple. (2) A lacerated wound with blackened edges 3 c.m. x 3/4 c.m. x muscle deep, 5-1/2 c.m. inner to injury No.l. Corresponding holes were present on the shirt. The injuries were kept under observation, which were caused with fire-arm.

3. Prosecution in support of its case had produced 12 witnesses in all. P.Ws.1 and 2 are the doctors who had conducted post-mortem examination and medically examined the deceased and the injured, respectively. P.W.4 Aurangzeb, Draftsmen had prepared site plan Exh.P.C. and Exh.P.C./1 on the directions of the police. Muhammad Aslam, M.H.C. P.W.5 had drawn formal F.I.R. Exh.P.D./1. Muhammad Latif, P.W.9 had attested the recovery of pistol P.3 at the instance of Arif Ali, and recovery of rifle P.4 at the instance of Iftikhar accused. Ocular account was furnished by Falaksher and Muhammad Asif, P.Ws.10 and 11, respectively. The case was investigated by Barkhurdar Ahmed, Inspector/S.H.O., P.W.12. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They also appeared on oath in their defence and pleaded innocence.

4. It was contended by learned counsel for the appellants that the case against them has not been proved at all. Submitted that the crime empty recovered from the spot did not match with the gun recovered at the instance of Iftikhar appellant, therefore, the recovery of .7 mm rifle in the instant case cannot be used as corroboration. Argued that no other crime empty was secured which could furnish corroboration with regard to the guns recovered at the instance of Shaukat Ali and Mehmood Ahmed, appellant. It was argued that four of the co-accused were acquitted on the basis of the same evidence, therefore, the eye-witnesses could not be relied upon qua the appellants, especially in the absence of any corroboration. It was pointed out that the medical evidence cannot be of any use because it contradicts the prosecution case because it has been proved from record that Asif P.W. was examined on 29-4-1988, whereas the doctor stated that he examined him on 28-4-1988. The contentions were opposed by learned counsel for the State as well as for the complainant. Their case was that prosecution had succeeded in establishing its case beyond doubt. It was argued that corroboration from medical evidence was available. '

5. We have heard the learned counsel at length and gone through the evidence, with his assistance. As far as the recoveries in the instant case are concerned, they cannot serve any corroboration because no crime empty of .12 bore gun was recovered and the recovery of guns simpliciter cannot provide any corroboration. One crime empty was secured from the spot but no opinion could be given if it was fired from .7 mm rifle P.4, recovered from Iftikhar, appellant. In these circumstances, it is held that the recovery of fire-arms at the instance of the appellants does not provide corroboration. As far as the motive for the occurrence is concerned, as given by the prosecution, it was that the accused side wanted to have a false case of Zina registered against the complainant side for having committed Zina-bil-Jabar with one Faujan, a Christian woman. Since it was a false case, therefore, the police did not register the same. We have considered this aspect and are inclined to agree with the submission of the learned counsel for the appellants that the appellant side had failed to get the case registered which was false, and, in such circumstances the motive was on the complainant side who were allegedly involved in a false case. The appellant side could not possibly have motive against the complainant side if they had failed to get a case registered with the police. As far as the ocular account is concerned, it has been furnished by Falaksher and Muhammad Asif, P.Ws.10 and 11, respectively. Falaksher was first cousin of the 4tdeceased, and witness Muhammad Asif was his close friend. Both of them supported the prosecution case as given in the F.I.R. In cross examination. Falaksher admitted that he had not obtained any leave or permission for staying at night out of his station of posting. He further stated that when Asif, P.W. received first shot he was holding the barrel of the rifle, and Khalid Latif, deceased received the first shot from the distance of three feet. He further stated that he was fired at from a distance of one foot, yet escaped injuries. He admitted that no unpleasant incident took place between Muhammad Yaqoob and Muhammad Asif P.W. in spite of the fact that they failed to get the Zina case registered against him, which happened 9/10 months before the occurrence. Muhammad Asif also corroborated the prosecution case by giving the version as contained in the F.I.R. He stated that he was taken in a wagon to the hospital immediately after the occurrence and was examined. We have noticed that in the injury statement of Muhammad Asif, P.W., the Investigating Officer had examined him on 29-4-1988 and found two fire-arm injuries, one wound of entry and the other wound of exit, and thereafter by the same document he made a request to the M.O. for medical examination of Muhammad Asif. This fact is in direct conflict with the statement of P.W.2 Dr. Abdul Sattar who stated that he had examined injured Muhammad Asif on 28-4-1988 at 10-20 p.m. In cross-examination, however, he had to admit that in the relevant column he had given date of examination as 29-4-1988, but thereafter scored it off and wrote the date of issue of certificate. After going through the relevant record, it is amply clear that Muhammad Asif, P.W., was examined on 29-4-1988 and his statement to that extent is false. Both the witnesses unanimously have stated that Shaukat Ali fired which hit Khalid Latif on his back and Muhammad Asif was fired at by Iftikhar once only. According to them, Muhammad Asif had received only one fire-arm injury. At the trial stage, in order to resolve the discrepancy, Muhammad Asif, P.W., stated that he was shot at only once and the other injury was wound of exit. The doctor who examined him, stated in clear cut words that the witness had, received two fire-arm injuries. Both were wounds of entrance. It is further noticed that according to the prosecution witnesses, Muhammad Asif was fired at from a close range when he had held the barrel of the gun in his hands, yet no bullet was recovered from his body. The eye-witnesses were not believed by the trial Court qua the four acquitted, co-accused, especially Shaukat Ali who allegedly fired at Khalid Latif hitting him on his back. Mahmood appellant was also armed with .12 bore gun P.5 and he allegedly fired as well hitting the deceased. In these circumstances, especially in the absence of any other corroboration, there is no material available on the record to indicate out of the fire-shots of Shaukat and Mahmood, whose fire hit the deceased. Similarly, case of Shaukat Ali and Mahmood are at par. There is no distinguishing feature at all which could help the Court in distinguishing the case of Mahmood convict from Shaukat, acquitted co-accused. The witnesses have discredited themselves with regard to the manner in which the occurrence took place. The role ascribed to the assailants is discrepant, therefore, it would be extremely unsafe to rely upon their uncorroborated testimony. They stand belied by medical evidence. In these circumstances, we hold that the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, giving the benefit of doubt, we accept the appeals and set aside the convictions. Both the appellants shall be released from custody forthwith if not required in any other case. For the same reasons, revision of the complainant fails, which is dismissed. N.H.Q./M-1471/L Appeals accepted.