2008 PLP 487 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The appellate-Shahbaz along with Dilshad was tried by Mr. Muhammad Tariq Abbasi, learned Additional Sessions Judge, Gujranwala, in Case F.I.R. No.222 registered at Police Station, Tatlay Aali on 14-6-2001 for offences under section 302/34, P.P.C. Vide judgment, dated 28-2-2002 the learned trial Judge, while acquitting Dilshad-co-accused, convicted the appellant for offence under section 302(b), P.P.C. and sentenced him to death plus payment of Rs.2,00,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. for six months.

2. Feeling aggrieved by his above noted conviction and sentence, Shahbaz, convict/appellant, has instituted the present appeal, whereas the learned trial Court has made a reference bearing Murder Reference No.332 of 2002 seeking information or otherwise of death sentence imposed upon the appellant, while Shahid Abbas, complainant/appellant has challenged the acquittal of Dilshad/co-accused by filing Criminal Appeal No.462 of 2002. All these matters are being decided by this judgment.

3. Succinctly, the facts of the case, per F.I.R. Exh.PH, recorded by Mushtaq Ahmad, S.-I./P. W. 13 on 14-6-2001 at 8-30 a.m. at the instance of Shahid Abbas, complainant/P.W.9, are that on 12-6-2001 at about 7-30 a.m., the complainant, his father Ghulam Abbas-deceased, brother Zahid Abbas/P.W.10 and grandfather Abdul Ghaffar Khan were returning to their village after plucking Tindas from their fields to sell the same in the market: Ghulam Abbas was ahead, while the complainant, his brother Zahid Abbas and grandfather Abdul Ghaffar Khan were following him. When they reached near Rajbah near their village, all of a sudden Shahbaz-appellant while armed with .12 bore double barrel gun and his father Dilshad/acquitted accused empty-handed emerged out of Jawa crop. Dilshad raised Lalkara to teach a lesson to Ghulam Abbas for not giving share from the property. Shahbaz caused two successive fires upon the deceased. One fire hit the deceased on his right buttock, in view whereof Ghulam Abbas fell down, while the second fire hit the deceased on his chest. The grandfather of the complainant asked to catch hold of Shahbaz but Shahbaz while resorting to fire and his father Dilshad raising Lalkara ran away: The complainant along with the P.Ws. firstly took Ghulam Abbas in injured condition to Kamonki Hospital from where he was referred to Mayo Hospital, Lahore, where he was got admitted and had succumbed to the injuries on 14-6-2001. As to the motive, it was alleged that Shahbaz-appellant used to pose himself to be the grandson of Abdul Ghaffar Khan. Both the appellant and his acquitted co-accused Dilshad committed the murder of the deceased for nothing. As the deceased was in serious condition, the matter could not be reported well in time.

4. On 14-6-2001 after registration of case at the instance of the complainant, Mushtaq Ahmad, S.I./P. W. 13, along with his subordinate and the complainant went to Mayo Hospital, Lahore, where the Medical Officer delivered him the death certificate Exh.PB of the deceased. The Investigating Officer/Investigating Officer prepared the injury statement Exh.PL, inquest report Exh. PM and sent the dead-body for post-mortem examination. Then he went to the spot; collected blood-stained and sealed the same into parcel vide memo. Exh.PJ and prepared the rough site plan of the place of occurrence Exh. PO. The Investigating Officer got prepared scaled site plan Exh. PC from the Draftsman. Dilshad/acquitted accused was arrested on 26-7-2001. The appellant-Shahbaz was arrested on 26-9-2001 and on 29-9-2001 while in custody, led to the recovery of .12 bore double barrel gun P.2 along with eleven live cartridges. These articles were taken into possession vide memo. Exh.PK. After completion of investigation, the appellant and his co-accused were challenged to face the trial.

5. To support its case at the trial, the prosecution produced thirteen witnesses in all. Ocular account was furnished by Shahid Abbas/P.W.9 and Zahid Abbas/P.W.10. In addition to that, they both also stated about the motive. Muhammad Rashed/P.W.12 stated about the recovery of gun and cartridges effected at the instance of the appellant, while Zahid Abbas stated about the recovery of blood-stained earth from the spot. Dr. Tahir Islam/P.W.8 medically examined Ghulam Abbas and referred him to Mayo Hospital, Lahore. Dr. Nawazish Ali/P.W.1, who conducted post-mortem examination on the dead-body of the deceased, while observing five lacerated wounds, three stitched wounds and one circular shaped wound on his person, opined that the death had occurred due to cardio-pulmonary arrest due to injuries Nos.2, 3, 4 and

5. According to him, injuries were Nos.1, 2, 3, 4 and 5 were caused by fire-arm. The duration between the injuries and death was about 46 to 48 hours, while between death and post-mortem examination it was 10 to 11 hours. The rest of the evidence, being formal in. nature, need not be discussed.

6. In their statements recorded under section 342, Cr.P.C. both the accused, pleaded their innocence and false implication, as per following statement of Dilshad/acquitted co-accused, which was also adopted by Shahbaz-appellant:

"I am the real son of Abdul Ghaffar Khan and I am the real brother of Ghulam Abbas deceased. The complainant party to deprive me from ancestral property, due to family dispute, denied the above mentioned facts. It was so held in a civil suit titled as "Dilshad Ahmad Khan v. Abdul Ghaffar Khan and others by the learned civil Court, Gujranwala, on 4-7-2000 while the suit filed by me was disposed of and dismissed under Order VII, rule 11 of C.P.C., but even in that order, I was declared a legal heirs of Abdul Ghaffar Khan P.W. The complainant party had enmity over land with other persons of the locality. Some unknown person committed the murder of Ghulam Abbas deceased in an unseen blind and un-witnessed occurrence. The complainant party after a delay of more than two days, with due deliberation, consultation, involved me and my son Shahbaz co-accused, in this false case due to grudge, property and family disputes and the P. Ws. being closely related to the complainant, have falsely deposed against me by improving their earlier statements coined by the police; with mala fide intention. Co-accused Shahbaz is real grandson of Abdul Ghaffar Khan P.W." Both the accused neither appeared as their own witnesses under ` section 340(2), Cr_P.C. nor did they produce any witnesses in defence. However, they produced in evidence attested copy of plaint Exh. DE and that of order, dated 4-7-2000 passed thereon by the civil Court as Exh.DF and closed their defence.

7. Learned counsel for the appellant submit that the witnesses were related; inimical and chance witnesses, who could not plausibly explain their presence at the time of occurrence; that the non-presence of the witnesses is supported by the fact that the matter was not reported to the police for two months; that ocular account is not supported by the medical evidence nor it is supported by the site plan; that the witnesses have contradicted each other 'on material points; that the recovery is of no consequence, as no empty was recovered from the place of occurrence.

8. Conversely, learned counsel for the complainant submits that the occurrence took place when the light was available and identity of the assailants was not in question; that both the witnesses have given plausible explanation for their being present along with the deceased on the date of occurrence; that the delay in lodging the F.I.R. stands explained, as the P.Ws, had been trying to save the life of Ghulam Abbas and had firstly taken him to THQ Hospital, Kamonki and then to Mayo Hospital, Lahore; that the ocular account is supported by the medical evidence and corroborated by the factum of abscondence of the appellant learned Additional Prosecutor-General for the State adds that the prosecution has successfully proved the motive, which is almost admitted; that when the evidence is recorded after considerable delay, then the minor contradictions becomes immaterial. Supports the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties at a great length and have also gone through the record.

10. The prosecution case rests on the statements of Shahid Abbas, complainant/ P.W.9, and Zahid Abbas/P.W.10, both sons of Ghulam Abbas-deceased. According to F.I.R., Abdul Ghaffar Khan, father of Ghulam Abbas-deceased and Dilshad acquitted accused, was also present at the time of occurrence but he was not produced before the learned trial Court and was given up as being unnecessary. In our opinion, he was the most important and most necessary witness in this case and the trial Court should have summoned him as Court witness. However it is too late now, as he has died. The hostility existed between the parties over share in property which is apparent from the following facts that according to motive set in F.I.R., Shahbaz appellant used to pose himself as grandson of Abdul Ghaffar Khan, which means that the complainant party refused to-acknowledge him as the grandson; on the other hand, Dilshad Khan, father of the appellant, filed a civil suit against his own father Abdul Ghaffar Khan, Ghulam Abbas deceased and Mst. Surayya Bibi, both son and daughter of Abdul Ghaffar Khan. According to the pedigree-table given in the suit (Exh. DE), Abdul Ghaffar Khan had two sons Dilshad Khan father of the appellant and Ghulam Abbas deceased and one daughter Surraya Bibi. The plaint was rejected under Order VII rule 11, C.P.C., vide order, dated 4-7-2000 (Exh.DF), available at pages 116 to 118 of the paper book. The main reason for rejection of plaint was that defendant No.1 Abdul Ghaffar Khan was the sole owner of the suit property, while plaintiff along with defendants Nos.2 and 3 was his legal heir and defendant No.1, who was owner in possession of suit property, could not be restrained from transferring it or alienating it in his life time so the background of hostility over property between the parties existed. In this case, no independent witness has been produced, hence, the statements of two eye-witnesses Shahid Abbas and Zahid Abbas need deeper scrutiny. According to prosecution story the two witnesses, their deceased father and their grandfather Abdul Ghaffar Khan had gone to their fields in the morning on 12-6-2001 in order to pluck Tindas. At about 7-30 a.m. all the four were returning to their village after plucking Tindas, to sell the same in the market. The father of the complainant was going ahead of all the P.Ws. when the complainant party was near the Rajbah near their village, they were surprised by the appellant who was armed with a .12 bore gun and his father Dilshad (acquitted accused) who was empty-handed. Both the accused had hidden themselves in a Jawar field. After emerging, Dilshad raised lalkara that Ghulam Abbas should be taught a lesson for not giving share in the property. Thereafter, Shahbas appellant fired twice. The first fire hit on the right buttock. Ghulam Abbas fell down. Thereafter, Shahbaz fired again causing injury on the chest. The injured was firstly taken to T.H.O. Hospital, Kamonki. Then he was referred to the Mayo Hospital, Lahore, where he died on 14-6-2001 at 5-00 a.m. Thereafter the matter was reported to the police. The non-reporting of matter to the police for two long days cast doubts on the presence of the P.Ws. Any of the P.Ws. could report the matter to the police. It is admitted that facility of telephone was available and the transport was also available. So the matter could easily be reported at the police station; which was at a distance of four miles, within an hour of the occurrence. The explanation offered by the prosecution that all the three P.Ws. remained busy in the hospital is not appealing. As already noted above, the police officer could reach the hospital after receipt of telephone call and record the statement of the complainant there. The delay remained unexplained. The reason for the deceased and the P.Ws., being together, was plucking of Tindas from the field, which was at a distance of 8/10 Killas from the house of the deceased. Both the P.Ws. have made material contradictions on the point of their being together. Shahid Abbas stated that they had C been plucking Tindas for about 2-1/2/3 hours, while according to P.W.10, they spent about 171-1/2 hour in plucking. Similarly, according to P.W.9, 3/a sacks of Tindas were plucked and from the fields the sacks of Tindas were transported to the market, whereas according to F.I.R., the complainant party was coming back to their village after plucking Tindas for selling the same in the market. Undeniably, a Darbar existed at a distance of hundred feet from the place of occurrence but the P.Ws. insisted that no one was present at the Darbar or on the path except the P.Ws. The story of the accused having hidden themselves in Jawar crop is also not borne out from the circumstances of the case. The complainant admitted that at the time of preparation of scaled site plan, he was present. A perusal of the scales site plan Exh.PC reveals that the presence of the accused was shown in a Moonji field and not in the Jawar field. According to FIR the first injury was caused on the right buttock of the deceased, while according to injury statement prepared by the Mushtaq, S.I./P.W.13, the injury was on the deft side of the buttock. P.W.10 during trial stated that the injury was on the right side of the buttock. He was duly confronted with his statement before the police wherein he had stated that the injury was on the left hip. To top it off, Dr. Nawazish Ali/P.W.1, who conducted post-mortem examination on the dead body of Ghulam Abbas, observed nine injuries on the person of the deceased. None of the injures was on the buttock of the deceased. During cross-examination, the doctor explained that he had not seen and, therefore, not mentioned any injury on the right buttock of the deceased at the time of post-mortem examination. According to P.Ws., second fire hit on the chest of the deceased, while according to post-mortem, injuries Nos.2, 4, 5 and 6 were on the abdomen. He admitted it to be correct that he mentioned injuries Nos.2, 4, 5, 6 and 9 on and below the belly. As far as Dr. Tahir Islam/P.W.8, who allegedly examined Ghulam Abbas on 12-6-2001 is concerned, his testimony is worthy of no credence, as according to himself, he handed over the medico legal report (MLR) on 14-6-2001 to Mushtaq/S.I. after receipt of docket. He kept on waiting .for the docket and did not inform the police for no reason. His observations of injuries do not tally with the observations of the doctor who conducted post-mortem examination. It is apparent that the doctor obliged the Investigating Officer (Investigating Officer) in preparing the MLR in accordance with the injuries mentioned in the F.I.R. His dishonesty stands exposed by the details given in the post-mortem examination. The medical evidence is not in occurrence with the ocular account which indicates that the P. Ws. were not present at the time of occurrence.

11. As regards the motive, there 'is no doubt that hostility existed between the parties over property. Both the P. Ws. stated before the learned trial Court that Shahbaz appellant was the grand son of Abdul Ghaffar Khan. However, they never stated that Dilshad father of Shahbaz was not son of Ghaffar Khan. As noted above, the property was in the name and possession of Abdul Ghaffar Khan father of deceased Ghulam Abbas and grandfather of the appellant who was alive then, so the grievance of the accused would have with Abdul Ghaffar and not with Ghulam Abbas. Secondly, the dispute existed between the parties since long and there was no special occasion for the accused to take guns on the particular day. The motive in this case cuts both ways. In the circumstances it is more likely that the appellant and his father were roped in this case due to enmity.

12. There is no need to comment upon the evidence of recovery of gun in the absence of recovery of any empties from the spot.

13. The factum of abscondence of the appellant has not been proved according to judicial requirements. The occurrence took place on 12-6-2001. The appellant and his father were roped in this case on 14-6-2001. According to Mushtaq, S.I./P.W.13, he arrested the appellant on 26-9-2001 within 3-1/2 months of the occurrence, while he was present at bus stand (Lorry Adda) Tatlay Aali. The presence of absconder at Lorry Adda, a place where the case has been registered, speaks volumes. Even otherwise the nature of evidence of abscondence was corroboratory only.

14. The upshot of the whole discussion is that after scanning the entire evidence and circumstances of the case, especially delay in lodging the FIR medical evidence and the existing hostility between the parties, we have come to the conclusion that presence of both the eye-witnesses at the time of occurrence was not free from doubt. Hence, while extending benefit of doubt to the appellant, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and shall be released forthwith if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative.

15. For the same reasons, Criminal Appeal No.462 of 2002, challenging the acquittal of Dilshad-respondent, is dismissed'. Even otherwise the learned counsel for the complainant/appellant remained unable to point out any mis reading or non-reading of evidence on the part of the learned trial Court while recording acquittal of the respondent/co- accused. N.H.Q./S-136/L Appeal allowed.