1985 PLP 685 (SCMR)

5. Dr. Rafique Ahmad Ismail (P.W.1) performed the post‑mortem examination. On atopsy the dead body of Dost Muhammad was found to have 3 fire‑arm inlet wounds with a diamension of 21" x 8". Out of these Injuries Nos.l and 2 were scorched. In addition there were 18 abrasions on various parts of the dead body. It may. be mentioned that Muhammad Zaman (P.W.12) and Khushal Khan (P.W.13) were also found to have sustained abrasions and lacerated wounds. Similarly Mahboob respondent was found to have sustained lacerated wound on his left eye and an abrasion on his chest, while Mansabdar (acquitted co‑accused) was found to have a sharp‑edged wound (1/2" x 8") deep on his forehead. It may be mentioned that the same doctor examined Mst. Zuberan Bibi, the daughter of Mansabdar accused and Mst. Gul Begum, the wife of Mansabdar and found that Mst. Zuberan Bibi had one incised wound (1 ," x 1/16") on her face and an abrasion (1" x ") below Injury No.l while Mst. Gul Begum had four abrasions and lacerated wound on her abdomen, fore‑arm and chin caused within about 24 hours.

6. At the trial the prosecution relied on the ocular testimony of Muhammad Zaman (P.W.12) and Khushal Khan (P.W.13) and Muhammad bawood (P.W.14). It also relied on the recovery of fire‑arm evidence of motive and the medical evidence.

7. The accused denied their guilt and pleaded innocence but they did not examine any witness. Mahboob accused stated in his statement under section 342, Cr.P.C., as under:‑ "My co‑accused Mansabdar, his wife and minor daughter were attacked when we were returning on a path and proceeding to our house by the complainant party who were armed with hatchets and sticks. The complainant party including the deceased injured us and we raised alarm. Supporters of both sides came there resulting in great confusion. During this confusion there was firing injuring Dost Muhammad deceased. Sultan Mahmood, Yaqoob and Ali Asghar were not with us. A false case has been brought against us by the complainant party to conceal their own aggression.

8. The learned trial Court acquitted Mansabdar co‑accused altogether and, while acquitting Yaqoob_ and Ali Asghar, co‑accused of the charge of murder, convicted them under section 323/34, P.P.C. and sentenced each of them to 6 months' R.I. each. It, however, convicted Mahboob and Sultan Mahmood under section 302/34,P.P.C. and sentenced each of them to death and a fine of Rs.1,000.

9. The convicted‑accused filed an appeal against their conviction and sentences and all of them were acquitted vide the impugned judgment. Feeling aggrieved Amir Zaman appellant filed a petition for leave to appeal against the acquittal of the four accused‑convicts. Leave was, however, granted to him for reappraisal of evidence only with regard to Mahboob and Sultan Mahmood respondents.

10. We have heard the learned counsel for the appellant as well as the learned State counsel and gone through the judgments of the two Courts below and relevant portions of the evidence on the record.

11. We are inclined to agree with the view taken by the High Court while acquitting the respondents, that there were obvious suppressions in the F.I.R.; two of the eye‑witnesses were closely related to the deceased while the third witness namely Muhammad Dawood was chance witness. Moreover, their testimony contained material improvements and could, therefore, not be believed; that the fabrication of the evidence of recovery of gun and recovery of crime empties should be ruled out and that the story about the motive was also not convincing.

12. According to the prosecution only two shots had been fired from a distance of about 100 ft. But the autopsy revealed 3 fire‑arm wounds of entry on the dead body. Moreover, out of these two had 'scorching' around them, while shows that these shots had been fired from very close range. This wholly falsifies the eye‑witness account of the occurrence. The presence of injuries on the two women of the accused side as well as injuries on the persons of the accused persons namely Mahboob and Mansabdar accused‑respondents shows that there was a fight between the parties prior to the occurrence, because these injuries could not have been inflicted if firing had been resorted to by Sultan Mahmood and Mahboob in the very beginning, as alleged by the prosecution. These facts support the plea of defence taken up by Mahboob in his statement made under section 342, Cr.P.C. We are, therefore, inclined to agree with the High Court that on this state of the evidence on the record it would not be possible to maintain conviction and sentences of the respondents and other co‑accused, they were, therefore, rightly acquitted by it. In this view of the matter we dismiss the appeal, and the respondents are discharged of the bail bonds. M . Z . M. Appeal dismissed