2000 PLP 976 (MLD)

8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R.; that it was a broad daylight occurrence; that all the three appellants while armed with fire‑arm criminally trespassed into the house of Fateh Muhammad brother of the complainant and committed. the murder of Karim Nawaz. They submit that there is no conflict between ocular account and medical evidence and the prosecution has proved its case against all the appellants beyond any shadow of doubt.

9. I have heard the learned counsel for the‑ parties at a great length and have also gone through the record with their assistance. In the instant case, three eye witnesses have been produced by the prosecution namely Eisab Khan, P.W.1 father of the deceased, Lal Khan P.W.2 brother‑in‑law of the complainant (P.W.1) and Abizar Khan P.W.3 cousin of the deceased Karim Nawaz, no inmate of the house of Fateh Khan where this occurrence had taken place was either cited as a prosecution witness or produced by the prosecution. Motive stated by the prosecution was that two of the appellants namely Haji Bahadar Khan and Muhammad Khan had illicit relations with the wife of Fateh Khan real brother of Eisab Khan complainant P.W.1 but neither Fateh Khan and cited as a prosecution witness in the calendar of witnesses nor he was produced by the prosecution and there is not an iota of evidence on record to prove this motive against the appellants, even it has come on record that wife of Fateh Khan was aged about 60/65 years, in my view at this age, the allegation of illicit relation with anybody does not appeal to sense. Moreover, in District Mianwal, nobody would allow any person to enter into his house for having illicit relation with his wife, so I I disbelieve the motive as stated by the prosecution.

10. For the just decision of the case, statement of Dr. Muhammad Ashfaq, M.O, who had conducted post‑mortem examination on the dead body of the deceased is reproduced below; "On 21‑11‑1997 when I was posted as CMO at DHQ, Hospital Mianwali, I conducted the post‑mortem examination upon the dead body (at 4‑45 p.m.) of Karim Nawaz son of Eisab Khan found the following injuries on the dead body:‑‑ (1) A group of six fire‑arm wounds of entry each measuring 1/2 c.m. x 1/2 c.m. in the area of 7 x 6 c.tri. 3 c.m. above left the nipple on the front of left side of chest. (2) A fire‑arm wound of entry 1/2 c.m. x 1/2 c.m. on the left lateral side of chest 8 c.m. below the left nipple at 4‑00 clock position. (3) A fire‑arm wound of entry 1/2 c.m. x 1/2 c.m. on the left side of chest, 4 c.m. below the left nipple at 7‑00 clock position. (4) A fire‑arm wound of entry 1/2 c.m. x 1/2 c.m. on the right side of chest 8 c.m. from the right nipple at 3.0 clock position. ' (5) A fire‑arm wound of entry 1/2 c.m. x 1/2 c.m. on the outer side of left upper arm 12 c.m. above the left elbow joint. (6) A fire‑arm of exit 1/2 c.m. x 1/2 c.m. on the back of left upper arm 10 c.m. below the left axilla. In my opinion, the cause of death was due to haemorrhage and shock, as a result of injuries Nos. l, 2, 3 and 4 which caused damage to heart, right and left lungs, liver and vital organs of body. These injuries were grievous and dangerous to life and were sufficient to cause death in the ordinary course of nature. Injuries Nos.5 and 6 were also grievous. All the injuries were anti‑mortem caused by fire‑arm weapon. Probable time that elapsed between injury and death immediate between death and post‑mortem about 7 hours .. It is correct that injury No. l which was in the shape of a group of six wounds can be a result of single fire. The, said fire was made from a distance of more than 6 to 30 feet. It is correct that while making the said fire, the assailant was in front of the victim. The person who caused injury No.2 might be at a remoter place than the person who caused injury No.

1. The injuries Nos.3 and 4 were also caused from the same distance as that of injury No.2. It is correct that injuries Nos.3 and 4 had not exit wounds. Injury No.6 is exit wound of injury No.5. It is correct that injuries Nos. l to 4 were caused by pellets. I cannot tell whether injury No.5 was caused through a bullet or pellet because from injuries Nos.5 and 6, no bullet or pellet were recovered. While inflicting injury No.5 the assailant was towards left side of the victim and not on his back side. Injury No.5 was inflicted from a closer distance as compared to injuries Nos.2 to 4.

11. After going through the statement but for the sake of arguments if it is admitted that injuries Nos. l to 4 were caused with one shot, but injury No.5 on the back of left arm of the deceased is an entry wound, this cannot be caused in any way from the front side. However, doctor had also admitted that there are number of shots on the person of the deceased and this is also clear from the cross‑examination and admitted by the doctor. Eye‑witnesses produced by the prosecution are closely related to each other and also related to the deceased. They, were not resident of the place of occurrence. Natural witnesses have not been produced by the prosecution. There was previous background of enmity between the parties about the murders from each side, recovery has been disbelieved by the learned trial Court. There is no report of fire‑arm expert.

12. Considering the overall facts, circumstances of the case and glaring conflict between ocular account and medical evidence and moreover as far as Abaid Ullah and Haji Bahadar Khan, no injury is attributed to them and no recovery was effected from them, all the appeals filed by the appellants are accepted. Conviction and sentence awarded to the appellants is set aside. They shall be released forthwith if not required in any other case. H.B.T./B‑7/L Appeals accepted.