1989 P Cr (PLP)

2. The occurrence in this case took place at 2‑30 a.m. (after mid‑night) on 11‑9‑1984 in the courtyard of the house of Muhammad Nawaz deceased in village Sagar Khurd about 3 miles from the Police Station Hafizabad District Gulranwala. The formal F.I.R. Exh.P.C./1 was recorded at the police station by M.H.C. Munir Ahmad P.W.13 on 11‑9‑1984 at 5‑25 a.m. on the basis of statement Exh.P.C. recorded by Inspector Dilawar Ali P.W.12 at 4‑30 a.m. on the same morning at Head Sagar at the instance of Munir Hussain P.W.5. It was stated by Munir Hussain complainant that at the time of occurrence he, his father Muhammad Nawaz, his mother Mst. Rasul Bibi and his sister Mst. Kalsoom were sleeping in courtyard of their house on cots. His brother Mazhar Iqbal was sleeping inside the residential room of the house. At about 2‑30 a.m. he got up on hearing noise and saw Ashraf, Ghulam Mushtaq Ahmed and Gulzar Ahmad accused armed with guns present in the courtyard. Ghulam fired at his father hitting him on right side of abdomen. The second fire of Gulzar hit left flank of his father. At that time Mushtaq and Ashraf accused kept their guns pointed towards the witnesses threatening them not to raise alarm. He stated that the occurrence was witnessed by him, his mother and sister who all were able to identify the accused in electric light present in the courtyard. Muhammad Nawaz died at the spot as a result of injuries. The accused went away firing in the air. In the meanwhile Bashir Ahmad P.W. reached the spot and his mother Mazhar Iqbal also came out of the room. It was stated by Munir Hussain complainant that about 2‑1/2 years earlier his brother Mazhar lqbal developed illicit relations with Mst. Kubra daughter of Ghulam accused. He enticed and married her about 10/11 months' before the occurrence to the annoyance of the accused.

3. The dead body of Muhammad Nawaz aged about 00 years was sent for nest‑mortem examination which was conducted at 12 noon on 11‑9‑1984 by P.W.I Dr. Muhammad Sadiq who on external examination found 5 fire‑arm wounds of entry each about 1 c.m. in diameter on front and side of right part of abdomen, on right aliac crest, on outer side of right buttock upper part, on right flank of abdomen near costal margin and on left flank and lower part of the chest. All injuries had tatooted margins. On dissection there was laceration of right lobe of liver and a big hole in the left lobe passing through and through and another through and through hole in the spleen, 11th rib and right aliac bone had been fractured. There were multiples holes in small intestines and mesentry. The ascending colon had been punctured. Three pellets were taken out from abdominal cavity. The death was due to shock and extensive haemorrhage as a result of the injuries which were collectively and individually sufficient in ordinary course of nature to cause death. All injuries were dangerous to life and caused by fire‑arm. The time between injuries and death was instantaneous and post -mortem was conducted in about 12 to 18 hours of death.

4. Inspector Dilawar Ali P.W.12 on 11‑9‑1984 during inspection of the place of occurrence collected blood‑stained earth vide memo. Exh.P.D. He took in possession 4 crime empties vide memo. Exh.P.E. and the cot of deceased P.4 vide memo. Exh.P.F. Ghulam Muhammad appellant was arrested on 21‑9‑1984. He on 4‑10‑1984 led to the recovery of a gun which was taken in possession by Inspector Dilawar Ali P.W.12 vide Exh.P.G. The crime empties and the gun were not produced during trial of the case because of negative report Exh.P.N. from the Examiner of Fire‑Arms. The accused were challaned after completion of investigation

5. In support of its case prosecution examined 13 witnesses in all P.W.5 Munir Hussain, P.W.6 Rasul Bibi and P.W.7 Bashir Ahmad were examined as eye‑witnesses of the occurrence. Mst. Kalsoom another witness named in F.I.R, was not examined during trial. The medical evidence was furnished by P.W.1 Dr. Muhammad Sadiq as given in detail above. The case was investigated by Inspector Dildar Ali P.W.12 and partly by S.I. Ghulam Rasul P.W.11. The evidence of rest of the witnesses was of formal nature. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They made statements on oath in rebuttal and did not produce any other defence evidence. The learned Additional Sessions Judge, did not place reliance on the evidence of incriminating recoveries. He did not accept the prosecution case regarding conspiracy, disbelieved P.W.9 Irshad Ahmad. P.W.7 Bashir Ahmad was an eye‑witness. He also made statement having last seen the accused together before the occurrence. This part of his statement was not accepted by the lower Court who placing reliance on the evidence on motive and eye‑witnesses convicted Ghulam Muhammad appellant as stated above.

6. I have gone through the evidence on record and have heard the learned counsel appearing on behalf of the parties. Munir Hussain P.W. is son of Muhammad Nawaz deceased. It is in evidence that Bashir Ahmad P.W. is brother of Mst. Rasul Bibi P.W. wife of Muhammad Nawaz deceased. Mushtaq and Gulzar accused are brothers inter se. Mushtaq accused is married to a daughter of Ghulam Muhammad accused who is cousin of Ashraf accused. It was admitted by Mst. Rasul Bibi P.W.6 that `it is correct that some 11 months before the present occurrence Ghulam Muhammad accused had lodged a case for the abduction of his daughter Mst. Kubra against myself, my daughter Kalsoom, my son Mazhar lqbal and my husband Muhammad Nawaz deceased'. It is, therefore, apparent that the parties were on inimical terms before the occurrence since at least about 10/11 months. This abduction was admitted by accused in their statements after close of prosecution evidence. The accused, therefore, had motive to commit the present crime. Similarly, the complainant party also had a motive to implicate the accused in the instant case. The motive could, therefore, not be considered as a corroborating evidence in the facts and circumstances of the present case.

7. The occurrence took place at about 2‑30 a.m. It was stated by Munir Hussain P.W.5 in his F.I.R. that he and the witnesses had identified the accused in electric light present in the courtyard. During trial he stated that the electric bulb was on at that time. However, this electric light was not shown in the site plan Exh.P.B. It was stated by Bashir Ahmad P.W. that he had identified the accused in torch light which he carried while running to the place of occurrence from his house. The said torch was not produced before the Investigating Officer by him. I am, therefore, of the view that there was no light in the courtyard to enable the witnesses to identify the accused at the time of occurrence who seem to have taken precaution to kill Muhammad Nawaz during night unnoticed by any one else. According to the medical evidence, Muhammad Nawaz deceased received 5 fire‑arm entry wounds. Injury No.5 was on left flank and lower part of the chest. The other four injuries are on right side of the abdomen. According to the medical officer injury No.3 on outer side of right buttock was from back to front. This means that the deceased received these injuries from three independent fires from different directions. According to the eye‑witnesses Muhammad Nawaz deceased received two fire‑shots, one by Ghulam Muhammad and the other by Gulzar, acquitted accused. It was stated by S.I. Ghulam Rasul P.W.11 that during investigation he went to District Jail Sheikhupura and on verification of the jail record he found that Gulzar Ahmad accused remained in jail from 28‑8‑1984 to 17‑9‑1984. The present occurrence took place at 2‑30 a.m. on 11‑9‑1984. This means that Gulzar Ahmad accused was definitely in jail at the time of occurrence and had been involved in this case falsely by the witnesses. The eye‑witnesses involved both Ghulam Muhammad and Gulzar Ahmad accused. They ascribed fatal blows to both these accused during the occurrence. The evidence of eye‑witnesses is not divisible. They were disbelieved as against Gulzar Ahmad. Their evidence cannot, therefore, be accepted as truthful against Ghulam Muhammad accused. The witnesses are related to the deceased and inimical towards the accused, They have not been corroborated by any other independent evidence. I, therefore, find that the prosecution has failed to prove its case beyond reasonable doubt against Ghulam Muhammad accused.

8. As a result of the above discussion this appeal is accepted. The conviction and sentences of Ghulam Muhammad accused‑appellant are set aside. He is acquitted from all charges. He shall be released from prison forthwith if not required in any other case.

9. In view of the above decision in appeal the connected revision is dismissed in limine. M.Y.H./G‑204/L Acquittal ordered.