1988 PLP 1814 (MLD)

SARDAR MUHAMMAD DOGAR, J.‑‑Habibullah, aged 43/44 years, was tried by Additional Sessions Judge, Mianwali, alongwith Sardar Khan, for having murdered Faqir Gul, a co‑villager, on 9‑7‑1981, at 9 a.m., on a path is the melds, in the area of village Manjha Ghundi Tola Bhangi Khel, at a distance of 33 miles from Police Station Kalabagh. The learned trial Judge convicted him under section 302 P.P.C. and sentenced him to death, plus to pay a fine of Rs. 5,000 in default whereof to undergo R.I. for one year, vide judgment dated 30‑9‑1984. Whole of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. Sardar Khan, his co‑accused, was acquitted vide the same judgment.

2. The convict has fled appeal. The learned trial Judge has made reference for confirmation of death sentence. The complainant has filed Criminal Revision No. 787 of 1984, against the acquittal of Sardar Khan. As all the matters arise from the one judgment, they are being disposed of by one judgment.

3. F.I.R. (Ex.PB/1) was registered at Police Station Kalabagh, on 9‑7‑1981, at 5/6 p.m. by Muhammad Anwar Khan, M H C (P.W. 3), on receipt of statement (Ex PB) made by Rahim Gul (P.W. 8) to Aziz Ahmad, A.S.I. (P.W. 10), on the same day at 2 p.m. at Adda Kachi Bhangi Khel, near Police Post Bhangi Khel,, at a distance of two miles from the spot. According to male F.I.R. Faqir Gul deceased, who was serving in the army and had come to his village on two months vacation, ten days before the occurrence, had gone to the house of Gul Mir, his father‑in‑law, alongwith his father Rahim Gul complainant and his wife Mst. Nur Jan P.W.9. He went out of the house of his father‑in‑law to see off Akbar Gul, Khan Gul Lambardar, Shalom Jan and Ali Gul, members of the Jirga. He returned short while later, i.e. 9 a.m. Thereafter, he started for his house accompanied by Rahim Gut, his father, arid Mst. Nur Jan, his wife. He was going 15/20 karams ahead of them. When h reached near the Kothas of Khan Mpg , he was challenged by Habibulluh appellant, Muhammad Rafiq absconding accused, armed with guns and Sardar Khan (acquitted accused) armed with a Kulhari. Muhammad Rafiq fired a shot from his gun, after Lalkara raised by ail three of them that he will not be spared for being in possession of land. The shot struck Faqir Gut on 'the chin and neck. He fell down. Thereafter, all the three ran towards him and Habibullah fired a shot hitting him on the chest, after going near him. When Mst. Nur Jan and Rahim Gut ran towards Faqir Gut, they were threatened by Sardar Khan. The assailants thereafter ran away. The occurrence, apart from the abovenamed two witnesses, was also seen by Mst. Gut Samanda, mother of the deceased. Faqir Gut died at the spot. Motive for the occurrence was that the complainant was in possession of two killas of Shamilat land since the demise of his father and grandfather and Muhammad Rafiq etc., who owned adjacent land, wanted to take the possession of that land. The complainant, however, was not prepared to vacate the possession. The matter had been considered by the Jirga 2/3 times but no decision could be arrived at. Can the night, preceding the day of occurrence also a Jirga consisting of Akbar Gut, Khan Gut, Shalam Jan and.A1i Gut was held but nothing could be decided.

4. Abdul Aziz A.S,I. (P.W. 10), after recording F.1,R. Ex. PB, went t3 the spot. He despatched the dead body of Faqir Gut for post‑mortem examination, after preparing necessary papers. Two empties lying on different places were collected by him from the spot and were taken into possession vide memos. Ex. PE and PF. Blood‑stained earth was also collected from the spot. Habibullah was arrested on 22‑7‑1981. Gun (P.8) was recovered from his house on his pointing out on 5‑8‑1981. It was taken into possession vide memo. Ex.PL. Sardar Khan, who was also serving in the army was arrested through warrants by Gul Muhammad., H.C. He was produced by him before the A.S.I., who interrogated him; as a result of which the accused led to the recovery of hatchet (P.7). Muhammad Rafiq could not be arrested and so the challan was submitted against two accused. After completion of necessary investigation, challan was put to Court.

5. Statements of eleven prosecution witnesses were recorded at the trial. Khan Gut, Mst. Gut Samanda and Muhammad Asla.rn P.Ws. were given up as unnecessary. Positive reports (Ex PN and PC) from the office of the Chemical Examiner arid that of the Serologist were also tendered in evidence.

6. Dr. Muhammad Mushtaq Ahmad, who had performed autopsy on the dead body of Faqir Gut appeared as‑P.W.

6. He noted following injuries on the body of the deceased:‑ (1) An entrance wound of fire‑arm 5 cm x 4 cm, on the front of lower part of left chest, 2 cm away from midline. Blackening was present around the wound. (2) An exit wound, 1‑1/2 x 1/2 cm on the back of middle zone of left chest near the posterior axillary line. Dark blood was running out of the wound. (3) An entrance wound of fire‑area 1/ ?, cm x 1/2 cm on the front left sidle of neck with exit wound, 1/2 cm x 1/2 on the back of upper part of left chest, 1 cm away from the midline. (4) An exit wound of fire‑arm 1‑1/2 cm x 1/2 cm on the upper part of lateral wall of left chest. (5) A grazed wound o.` fire‑arm l‑1/2 cm x 1/2 cm on the anterior wall of left axilla. (6) A grazed wound of fire‑arm 3‑1/2 cm x .5 cm on the outer and back side of upper part of left upper arm. (7) An entrance wound of fire‑arm 2 cm x 1‑1/2 cm under the centre of chin, with its exit wound 2 cm x 1‑1/2 on the right side of back of head 10 cm above the right ear. (8) An abrasion 3 cm x 2 cm on the back of upper part of right chest 1 cm away from the midline. According to the opinion of the doctor, the deceased had died due to shock and haemorrhage, resulting from injuries Nos. 1 and

7. Four pellets and pieces of wads were. also recovered from the dead body. During cross‑examination, the doctor stated that injury No. 7 would have caused instantaneous death even without the damage caused by other injuries.

7. The ocular account was deposed to by Rahim Gut (P.W.8) and Mst. Nur Jan (P.W.9). Rahim Gul repeatedthe facts given by him in the F.I.R. During cross‑examination, he ;hated that Faqir Gut had married a daughter of Rangndeen Khan and had a son from her, but Faqir Gut had divorced his wife and had married Mst. Nur Jar, P.W., who was initially married to Zafarullah, her cousin after he had divorced her. He denied the suggestion that Zafarullah had divorced Mst. Nur Jan on account of the fact that Mst. Nur Jan had illicit relations with Faqir Gut. He admitted that Zafarullah was also residing in the same village at a distance of four hundred paces from their house. In answer to another question, he stated that he had seer. the accused for the first time when they were at a distance of 40 karams from them and that they had fired upon the deceased from the same place where from they had emerged. He stated that police post was at a distance of 2‑1/ 2 miles from their house. According to him, the A.S.I. had reached the spot at about 5/ 6 p.m. He expressed lack of knowledge about accused having sworn on Qur'an about their innocence. Mst. Nur Jan corroborated the statement made by Rahim Gut. During cross‑examination, she stated that she was alone in the house of her father, as wives of her brothers had already proceeded to fetch water and his father had died a year before the occurrence. It may be noted here that statement of Mst. Nur Jan was recorded with the help of an interpreter as she could neither speak Urdu nor Punjabi and she only knew to speak Pushlo. Aziz Ahmad, A.S.I. (P.W.10) during cross‑examination stated that he had not recorded the statement of the Patwari about the dispute of land, which was motive for the. occurrence. The stated that he had not collected any document also from him. In answer to another question. he stated that first plea taken by Habibullah was of innocence and he had examined some persons in his defence also. He stated in answer to another question, that the door of the room where from the gun was got recovered by Habibullah was lying open. Muhammad Hussain Patwari Halqa, who had prepared the site plan stated in cross‑examination that there was no Shamilat Deh in village Bhangi Khel.

8. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. He denied that there was any dispute of land between them the complainant. He denied that he had absconded. The recovery of gun was also denied by him. He took up the plea that he was involved in this case due to enmity and suspicion. Similarly, Sardar Khan also denied the prosecution allegations as a whole. Muhammad Ibrahim, Girdawar Halqa was examined in defence by Habibullah appellant, who stated that no application had been received from the complainant for Hadbarari. Ex. DA. death certificate of Guhnir Khan and Ex.D.B, report from the office of the Fire‑arms Expert were also tendered in evidence by him. According to the report of the Fire‑arms Expert, Ex. DB, the two empties recovered froth the spot were not found to have been fired from the gun said to have been recovered from the appellant.

9. We have gone through the record with the assistance of the learned counsel for the appellant and have considered the contentions raised by the learned counsel for the parties.

10. Akbar Gul, Khan Gul, Shalam Jan and Ali Gul mentioned in the F.I.R. as members of the Jirga for sorting out the dispute between the parties about the land, were not produced at the trial in support of the fact, that the parties had differences over the possession of Shamlat land. In fact, Akbar Gul, Shalam Jan and Ali Gul were not even cited as witnesses. Khan Gul was cited as a witness in the calendar, but was given up as unnecessary. Therefore, there is nothing on record to corroborate the statement made by the complainant about motive for the occurrence. Even Mst. Nur Jan, wife of the deceased, did not state anything about land dispute. Muhammad Hussain, ‑Patwari Halqa (P.W. 4.) stated during cross‑examination that there was no Shamilat Deh in the village. In the circumstances, there appears to be pretty substance in the argument of the learned counsel for the appellant that the prosecution has failed to prove motive, set up for the occurrence. The evidence of recovery of gun stands negatived on account of the fact that the two empties recovered from the spot were a not found to have been fired from the alleged recovered gun, vide report Ex. DB from the office of the Forensic Science Laboratory. Apart from the fact that the gun was not found wedded with the crime empties, the recovery of the same is also doubtful. In that we have taken note of the fact that the Kotha, from which the gun was recovered, according to the A.S.I. (P.W. 10) was lying open at the time of recovery. That means that it was accessible to everyone. It is worthwhile to note here that none from the public was joined by the A.S.I. at the time of recovery of gun and Muhammad Afzal and Muhammad Akram constables, who had attested the recovery, were not produced at the trial

11. Since the prosecution has failed to prove motive and the report of the Fire‑arms Expert is in the negative and evidence of recovery of gun has been discarded, the prosecution case rests on the statements made by two eye -witnesses and the medical evidence.

12. The two witnesses, who had deposed the ocular account are closely related to the deceased, being father and wife. The occurrence, according to the prosecution, had taken place during day time. There were houses nearby. Some people must have been working in the fields as well. In spite of that neither any independent witness was named in the F.I.R. nor produced at the trial.

13. The prosecution story that the deceased and the two P.W s. had come to the house of the father of Mst. Nur Jan and were returning to their house from there when the occurrence took place, neither inspires confidence nor seems to p be true, for the reason that according to Mst. Nur Jan she was alone in the house of her father. 1n that she explained that wives of her brothers had already gone to fetch water and her father had died. If there was none in the house, whom they had gone to see and with whom had they remained there? This part of the prosecution story, therefore, seems to be concocted one. Yet the other important aspect of the case is that the police post is at a distance of 2‑1/2 miles from the pace of occurrence. The occurrence in fact, was also reported to the ASI, by the complainant near the police post. Ex. PB, the statement of the complainant, on the basis of which formal F.I.R. was registered at the police station, was recorded at 2 p.m. The occurrence had taken at 9 a.m. If the complainant had witnessed the occurrence, why did he riot report the matter earlier? He could not have. taken five hours to cover a distance of 2‑1/2 miles. Even if he had started one hour after the occurrence, which should have been done, if he had witnessed the occurrence would have been reported before 11 a.m. I he delay tells upon the bona fides of the complainant. Taking all these facts into account, we find weight in the argument of the learned counsel for the appellant that the complainant might not have witnessed the occurrence and he seems to have lodged the F.I.R, after making some inquires. The medical evidence at the best speaks of the fact that the deceased had died as a result of gun shot injuries, but in that also there is contradiction between the medical evidence and the ocular account. Rahim Gul stated during cross -examination that he had seen the accused for the first time when they were at a distance of 40 karams and that they had fired from the place, from where they had emerged. If that was so, there could not have been blackening around the F seat of injury No. 1.

14. On having thoroughly examined the evidence, we are of the view that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. This appeal is, therefore, allowed and the appellant is acquitted. He shall be released forthwith, if not required for any other case.

15. The case of acquitted accused Sardar Khan, against whom revision petition has been filed by the complainant, is on better footing than the appellant, in that there is no medical evidence even in corroboration of the part assigned to him. The judgment of acquittal passed in his favour by the trial Judge does not call for interference. The revision petition is, therefore, dismissed, king without any merit. SA./H‑53/L. Appeal accepted.