2002 PLP 3667 (YLR)

The police after registration of First Information Report took up the investigation. The police prepared memo. of dead body. The police also prepared inquest report. The police on completion of investigation submitted challan and the case was sent up to the Court of Sessions Judge Malir, Karachi, who framed the charge against the accused on 8‑8‑1997. The accused pleaded not guilty and claimed to be tried. The prosecution in its support examined complainant Sher Muhammad P. W .1 as Exh.9; Sher Afzal P.W.2 as Exh.10, Ameeruddin alias Chand Khan P.W.3 as Exh.11 Fazal Rehman P.W.4 as Exh.12, Ahmed Zakarya Baloch P.W.5 as Exh.15, Malir Abdul Haq P.W.6 as, Exh.17, Noor Muhammad P.W.7 as Exh.18 and Dr. Ayaz Ali P.W.8 as Exh.19. The prosecution on 13‑4‑2000 closed its side. The statements of appellants Baz Muhammad and Faiz Muhammad were recorded as Exhs. 21 and 22 respectively. The appellants examined themselves on oath and examined D.W. Muhammad Nawab in their defence. Ultimately, the trial Court, convicted both the appellants and awarded them sentence stated above. We have heard Mr. Sarfraz Khan Tanoli, learned counsel for the appellants, Mr. Umer Farooq Khan, learned counsel for the complainant and Mr. Habib Ahmed A.A.‑G for the State. We have also perused the record. The incident of this case occurred on 26‑2‑1996 at about 5‑20 p.m. and the report thereof was lodged by Sher Muhammad on the same day at 7‑23 hours with Qaidabad Police being Crime No.50 of 1996. The contents First Investigation Report reveal that the incident was witnessed by complainant Sher Muhammad, his son Noor Muhammad and Sher Afzal. Out of the aforesaid three eye‑witnesses P.W. Sher Afzal has not supported the prosecution case. He stated before the trial Court that he had not witnessed the incident. The next P.W. Noor Muhammad who is son of the complainant has stated before the Court that Faiz Muhammad had attempted two fires upon him but the same did not hit him. He has stated that he was not aware as to at what time the injured was taken to hospital. He stated that police prepared mushirnama of Wardat in the moonlight at about 7‑35 p.m. on the same day. His presence has been denied by the complainant Sher Muhammad. The complainant has stated that he was alone in the house when the incident took place. He has not taken the name of Noor Muhammad or Ameeruddin alias Chand Khan to be the eye‑witnesses of incident. He stated that P.W. Sher Afzal and Pordal witnessed the incident. The complainant has, therefore, made the presence of P.W. Noor Muhammad doubtful. He is brother of deceased and inimical to accused. The next eye‑witness is complainant Sher Muhammad. He has contradicted the contents of First Information Report inasmuch as he stated in his First Information Report that his son Qari Mir Muhammad Khan had left house for teaching Qur'anic, lessons and when reached outer door, the incident took place but in his deposition he stated that his son was returning to home. In his First Information Report he stated that he was available in the house alongwith his wife and children when incident took place while in his deposition he categorically stated that he was alone in the house when incident took place. Complainant has further stated that after lodging the report police did not accompany him to the place of Wardat but they conducted investigation after four days of the incident. He had removed the dead body to police station wherefrom he was directed to take it to Jinnah Hospital and after completion of formalities at hospital he buried the dead body. He has stated that Sher Afzal had seen the incident but the latter has deposed that he was not available at the time of incident. In this view of the fact, the ocular evidence is interested and suffers from material discrepancies. P.W. Sher Afzal has not supported the prosecution case as stated above. Presence of P.W. Noor Muhammad has been made doubtful by the complainant in his testimony. Enmity is admitted in the deposition as well as First Information Report. The aforesaid ocular evidence needs substantial corroboration, which is lacking in this case. The prosecution has even failed to prove that the deceased was shot dead at the place of incident mentioned in the First Information Report. The memo. of dead body shows that it was prepared at the place of incident but the Investigating Officer has deposed that it was prepared outside the police station as the dead body was brought to police station; No blood was available at the place of incident nor it was taken by the police. The complainant has stated that police visited his house after four days. P.W. Pordal acted as Mashir of dead body. He was not examined by the prosecution. Fazal Rehman the mashir of place of incident was examined as P.W.4 but he did not support the prosecution version. He stated that the police had visited place of incident after one week and obtained his signatures. Another mashir Noor Muhammad deposed that nothing was recovered from the Wardat. There was no blood. Ahmad Zakarya Baloch the mashir of arrest has not supported the prosecution version. He was declared hostile and was cross‑examined by Deputy District Attorney. Furthermore, the ocular evidence is in conflict with the medical evidence as Dr. Ayaz Ali who was examined as P.W.8 has stated that the deceased had received two injuries one exit wound and another entrance, which are the result of one shot. P.W. Noor Muhammad testified that accused Faiz Muhammad fired two shots one of which hit him on abdomen whereas another hit him on armpit. Complaint stated in F.I.R. that deceased sustained two injuries P. W. Chand has deposed that deceased sustained two injuries. It is stated by the complainant that so many neighbours witnessed the incident but they have not been examined nor their names have been disclosed. Presence or Ameeruddin alias Chand has been falsified by the complainant. His name does not transpire in First Information Report. Complainant is not a trustworthy man. He has given bristling version at various stages. Presence of Noor Muhammad at the place of incident is not established. No other piece of circumstantial evidence is collected by prosecution. The record demonstrates that the parties were criminal type of persons. It is admitted by P.W. Noor Muhammad that his father was named in the five First Information Reports. The prosecution has failed to prove the place of incident. On examination of whole of the prosecution evidence stated above, we came to the conclusion that the prosecution had failed to bring home the guilt of the appellants, therefore, we allowed the appeal and dismissed the revision for enhancement of sentence and acquitted the appellants by a short order dated 22‑1‑2002. These are the reasons for the same. H.B.T/B‑59/K Appeal allowed