2017 PLP 322 (YLRN)

ASLAM JAVED MINHAS, J.

Appellants, Yasir,Azhar, Ali Bahadur, Shakeel Ahmad, Nasir and Abdul Qadeer along with acquitted co-accused namely, Jamshaid, Muhammad Anwar, Muhammad Qaiser, Asif, Sijjad, Muhammad Akram, Muhammad Tasleem, Rashid, Ghulam Farid, Irshad, Aalimgeer, Dilbar alias Dillo, Hanif, Chandi, Iqbal, Nasir, Arshad, Ajmal alias Ajjo and Abdul Hakeem son of Muhammad Ismail were tried by the learned Additional Sessions Judge, Lodhran in a case FIR No.174, dated 12.5.2007, offence under sections 302, 324, 447, 511, 148, 149, P.P.C., registered at Police Station Saddar Lodhran and vide judgment dated 29.10.2009 they were convicted and sentenced as under:-- i) Muhammad Azhar, Muhammad Yasir, Ali Bahadur, Abdul Qadeer, Nasir and Shakeel under section 302(b) read with section 149, P.P.C. and sentenced to life imprisonment each with compensation of Rs.100,000/- each to be paid to the legal heirs of Abdul Hakeem and Fayyaz deceased. ii) Muhammad Azhar, Muhammad Yasir, Ali Bahadur, Abdul Qadeer, Shakeel and Nasir under section 148, P.P.C. to three years each with fine of Rs.10,000/- each. iii) Abdul Qadeer under section 324, P.P.C. to 10 years RI with fine of Rs.50,000/-. iv) Abdul Qadeer under section 337-D, P.P.C. to pay 1/3rd of Diyat to injured Muhammad Munir. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to them.

2. The relevant facts for the disposal of this appeal as per complaint Ex.PA got recorded by Mushtaq Ahmad complainant are as under:-- "I reside at Chah Darkhanwala. Land measuring 163 kanals 9 marlas is owned by me. Today, at about 2 p.m. I along with Muhammad Fayyaz, Muhammad Irshad alias Shah Muhammad sons of Muhammad Ramzan, Abdul Hakeem, Muhammad Munir sons of Khuda Bakhsh, Muhammad Iqbal son of Rahim Bakhsh, Muhammad Siddique son of Abdul Hakeem, Ghulam Qadir son of Allah Ditta and Mst. Nasim Mai wife of Khalil Ahmad were present in squre No.126, Killa No.1 for preparation of land of cotton crop. All of a sudden, Abdul Qadeer son of Feroz Khan armed with Repeater 12-bore, Jamshaid son of Nannun Khan armed with Repeater 12- bore, Khalid son of Umeed armed with Repeater 12-bore, Ghulam Farid armed with Repeater 12-bore, Irshad Ahmad armed with sota, Ajmal armed with sota, Abdul Hakeem empty handed, Aalimgeer empty handed, Dilbar alias Dillo armed with gun 12-bore, Shakeel armed with 12-bore gun, Ali Bahadar armed with Repeater, Sabir armed with Repeater, Nasir son of Jamshed armed with Repeater, Hanif armed with gun 12-bore, Arshad armed with gun 12-bore, Chandi armed with gun 12-bore, Azhar armed with Repeater, Yasir armed with Repeater, Rasheed Ahmad son of Gami empty handed, Iqbal armed with gun 12-bore, Nasir armed with sota, Akram armed with gun 12- bore, Ashraf armed with sota, Anwar son of Siddique armed with sota, Asif, Sijjad sons of Bashir Ahmad armed with sotas, Tasleem son of Aalimgeer armed with sota and Qaiser son of Muhammad Nazir armed with sota all by caste Rajput came and they made lalkara that this property is owned by them. They will not allow us for ploughing. Meanwhile, all accused, who were armed with weapons made straight firing upon us. I while running position took edge of Sheesham tree. Upon noise of firing, Khadim Hussain son of Abdul Aziz and Sijjad son of Ramzan, caste Khokhar and other PWs reached there. Khalid and Ali Bahadar made straight firing upon Abdul Hakeem son of Khuda Bakhsh, who sustained injury on his chest and belly, and fell on ground. Sabir and Nasir son of Jamshaid made straight fire upon Fayyaz son of Ramzan, who sustained fire shot injury on his chest and fell on ground. Iqbal and Yasir gave fire shot to Muhammad Irshad alias Shah Muhammad, Abdul Qadeer and Jamshaid made firing upon Muhammad Munir son of Khuda Bakhsh, Dilbar alias Dillo fired upon Rahim Bakhsh, Azhar and Ghulam Farid made fire upon Muhammad Siddique son of Abdul Hakeem, Shakil injured Ghulam Qadir son of Allah Ditta, Mst.Nasim Mai wife of Khalil Ahmad was injured at the hands of Muhammad Akram. Injured sustained injuries on various parts of their bodies. This occurrence was witnessed by Khadim Hussain, myself and Sijjad. Accused made indiscriminate firing, people of locality requested the accused but they while making firing went to their houses. We took care of injured and saw that Abdul Hakeem son of Khuda Bakhsh, Muhammad Fayyaz son of Muhammad Ramzan succumbed to the injuries at the spot. Injured were shifted through tractor trolley towards hospital, Lodhran. With the dead bodies of Abdul Hakeem and Fayyaz, the complainant left Khadim Hussain and Sijjad Ahmad PWs and while on the way to police station met Manzoor Ahmad Inspector/SHO Police Station Saddar Lodhran and got recorded his statement upon which FIR Ex.PA was lodged.

3. Manzoor Ahmad Muth Inspector/ PW.9 after recording the statement of Mushtaq Ahmad sent the same to the police station for registration of formal F1R Ex.PA. After completion of investigation the challan under section 173, Cr.P.C. was submitted in the trial court. The learned trial court framed the charge on 19.09.2009 which was denied by the accused and they claimed trial.

4. To prove guilt of the accused, the prosecution examined as many as 12 witnesses during the trial.

5. The medical evidence was furnished by Dr. Riaz Ahmad, PW.7 who on 12.5.2007 conducted the post mortem examination on the dead body of Fayyaz Ahmad and observed as under:-- "

1. Multiple (about 45) pellets wounds on front of chest and abdomen (individually measuring about 0.3 x 0.3 cm)." On dissection, Heart, lungs and intestines were found perforated, blood was present in the chest and abdominal cavity. Three pellets were recovered from the heart. Abdomen: Walls, peritoneum and intestines were found perforated, while other viscerae were found normal. Remarks: After thorough external and internal post mortem examination, in my opinion, the cause of death in this case was shock and hemorrhage due to above mentioned injuries, which/ were sufficient to cause death in ordinary course of nature. The probable time between injury and death was immediate. The time between death and post mortem was within about six hours. On the same day, he also medically examined injured Irshad Ahmad and observed as under:--

1. Four wounds of entry (each measuring about 1 x 1 cm) on the right and front of abdomen about 11 cm from umbilicus. 2 One wound of exit 3 x 1.5 cm on back of right abdomen.

3. Two wounds of exit 1.5 x 1.5 cm (each) on back/lateral of right abdomen. All the injuries were kept under observation and injured was referred to B.V Hospital, Bahawalpur for further management. Injuries were caused by firearm weapon and probable duration between 1 to 2 hours. On the same day, he also medically examined injured Ghulam Qadir and found the following injuries on his person:-

1. A contusion mark (red in colour) 10 x 2 cm on left scapular area.

2. The examinee complained of pain and numbness in the back of head and neck and lumber area. Injury No.2 was kept under observation and the patient was admitted in the hospital. These injuries were caused by blunt weapons and the probable duration was within 24 hours. On the same day he also medically examined injured Muhammad Siddique and found the following injuries on his persons:--

1. Four wounds of entry (1 cm x 1 cm each) with black margin, on the outer side of left elbow joint.

2. Three wounds of exit of variable sizes on back/ inner side of left elbow joint. 3 A lacerated wound with black margin measuring about 3 x 1 cm x skin deep on left upper arm, outer side just about left elbow joint. Injuries Nos.1 and 2 were kept under observation, while the injury No.3 was declared as Jurrah Ghair Jaifah Damiah. The injuries were caused by firearm weapons and their probable duration was about two hours. The injured was referred to B.V. Hospital, Bahawalpur.

6. On 17.05.2007, PW.10 lady Dr. Sadia Bashir, WMO, Quaid-e-Azam Medical College, Bahawalpur medically examined Mst.Nasim Mai and observed as under:--

1. An entrance wound of about 1 x 1 cm with margins inverted slight blackening around wound on the back of right thigh. She had changed clothes and did not bring clothes with her, so corresponding wounds on clothes could not be seen. An exit wound of about 1 x 1/2 cm with margins everted slight bruise of blue colour around wound. Wound is lacerated and almost liner in shape on the medial side of right thigh. Injury No.1 was kept under observation. The patient was admitted in the Hospital. The injury was caused by blunt weapon and the probable duration was within 5 to 6 days.

7. On the same day i.e. 12.5.2007, Dr. Muhammad Farooq PW.12 conducted the post mortem examination on the dead body of Abdul Hakeem and found the following injuries on his body:--

1. Multiple pellet wounds each of size 0.3 x 0.3 cm are present on all over front of the chest. 2 to 3 pellets were recovered from the lungs. Internal Appearance: Thorax. Ribs under lying the injuries are fractured. Pleaurae of both lungs are punctured. Thoracic cavity is full of blood. Right lung punctured at various sites. Left lungs also punctured at various sites. Rest of the body viscera and cavity were found normal. On the same day, he also medically examined Muhammad lqbal son of Rahim Bakhsh and found the following injuries on his person:-

1. A firearm pellet wound of 1/2 x 1/2 cm on right side of the temple 3 cm above the lateral angle of right eye.

2. A 3 x 1/2 cm lacerated wound on top of the head 12 cm above the right pinna, bone is exposed. X-Ray of skull advised.

3. A lacerated wound of 5.5 x 1 cm skin deep on the top of the skull with bone exposed 13 cm above the right pinna. X-Ray skull advised.

4. A read swelling of 9 x 8 cm on the back of the left elbow joint.

5. A red contusion of 10 x 3 cm size on the back of the right lower chest.

6. A red contusion of size 12 x 2 cm on right upper scapular region. Injuries Nos.1, 2, 3 were kept under observation till X-ray report. Injuries Nos.4, 5 and 6 were simple contusion. Kind of the weapon, injury No.1 caused by firearm and injuries Nos.2, 3, 4, 5 and 6 caused by blunt weapons. Probable duration of injuries within 24 hours. On the same day, he also medically examined injured Munir Ahmad son of Khuda Bakhsh who was brought by the police and found the following injuries on his person:- "Injured person is fully conscious and well oriented in time and space. There were multiple pellets wound on right side of neck, head and back of chest, each of size 1/2 x 1/2 cm." Kind of weapon was firearm. Probable duration of injury was 2 to 3 hours.

8. Mushtaq Ahmad, complainant was examined as PW

1. He supported the prosecution version as narrated by him in FIR Ex.PA. Sijjad Hussain appeared as PW

2. He also supported the prosecution story as an eye-witness of the occurrence and his statement was in line with that of the complainant. PW3 Munir Ahmad also supported the prosecution story as an eye-witness of the occurrence and his statement was also in line with that of the complainant. PW4 Siraj Ahmad Patwari prepared the scaled site plan of the place of occurrence through memo Ex.PO, Ex.PO/1 and Ex.PO/2. PW5 Asghar Ali 343/C delivered the sealed parcel of empties to the office of Forensic Science Laboratory on 20.06.2007. PW6 Riaz Ahmad 358/C deposed that on 12.5.2007 I.O. handed over to him injury statements of Siddique, Munir, Iqbal, Ghulam Qadir, Irshad and Nasim Mai injured. He also escorted the dead bodies of Abdul Hakeem and Muhammad Fayyaz to DHQ Hospital, Lodhran and got conducted the post mortem examination. PW8 Mukhtar Ahmad ASI kept four sealed parcels of blood stained earth in safe custody in malkhana and on 31.5.2007 he handed over the same to Ghulam Shabir 249/C for onward transmission to the office of Chemical Examiner. On 17.6.2007 the I.O. Akram Chatta handed over to him three sealed parcels of 12-bore gun, one sealed parcel of repeater and other one of carbeen which he kept in safe custody. On 28.6.2007 he handed over the same to Asghar Constable for its onward transmission to the office of Forensic Science Laboratory, Lahore. PW9 Manzoor Ahmad Muth Inspector/ SHO was declared hostile and he was cross-examined. PW11 Muhammad Akram Chatta Inspector/SHO also investigated the case. He inspected the place of occurrence, secured the blood stained earth underneath the dead bodies through memo Ex.PB and Ex.PC, prepared the injury statement of Fayyaz deceased through memo Ex.PQ and inquest report Ex.PQ/1, prepared the injury statement of Abdul Hakem deceased through memo Ex.PV and inquest report Ex.PV/1, secured the blood-stained earth of the injured PWs, collected 15 empties of 12-bore through memo Ex.PF and then recorded the statements of the PWs under Section 161 Cr.P.C. On 19.05.2007, he arrested the accused persons namely, Jamshaid, Anwar, Qaiser, Asif, Sijjad, Akram, Nasim, Rashid and Hakeem-ud-Din. On 3.6.2007, accused, Abdul Qadeer, Muhammad Hanif, Muhammad Arshad, Chandi, Muhammad Iqbal. Nasir, Ashraf, Yasir, Muhammad Azhar, Aalimghir, Muhammad Nasir, Ali Bahadar, Azam, Ghulam Farid, Muhammad Irshad and Shakeel Ahmad joined the investigation before him. In the investigation conducted by him, accused Muhammad Iqbal son of Rashid, Akram, Ashraf, Nasir sons of Rashid, Sijjad, Asif sons of Shabir Ahmad, Jamshaid, Ghulam Farid, Irshad sons of Nannu Khan, Dilbar alias Dillo son of Abdul Hakeem, Rashid son of Gami Khan, Tasleem son of Aalimgir, Qaiser son of Nazir Ahmad, Anwar son of Siddique and Aalimgeer son of Ismail were found innocent which was also verified by the SHO and SDPO Circle Lodhran. Whereas, accused Ali Bahadar son of Qadeer Ahmad, Sabir Ali son of Qadeer Ahmad, Nasir Ali son of Jamshaid, Khalid son of Umeed, Abdul Hakeem son of Ismail, Azhar son of Iqbal, Shakeel son of Abdul Hakeem, Arshad son of Bashir Ahmad, Muhammad Ajmal alias Ajjo Khan, Qadeer Ahmad son of Firoz Khan were found guilty during his investigation. On 14.6.2007, he arrested accused, Qadeer Ahmad, Ajmal, Arshad, Ali Bahadar, Shakeel Ahmad, Nasir son of Jamshaid, Muhammad Azhar. On 17.6.2007, Azhar, Ali Bahadar, Arshad, Shakeel Ahmed Nasir got recovered the weapons of offence. Thereafter, he got proclamation of accused Khalid and Sabir.

9. After closure of the prosecution evidence the statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. In reply to question "why this case against you", Azhar, appellant stated as under:-- "There was a dispute between complainant party and Jamshaid on the point of road, in which a road was sanctioned in favour of Jamshaid etc. which was excavated through police. Afterwards road was in a use and a consolidation proceeding was initiated by Revenue Authorities, in which road was incorporated in the Wanda of complainant party and replace the road where from it was already leading, on the basis of that dispute we file an appeal due to which they felt annoyance and involved us in this case. Appeal is still pending." Likewise, to the question "why the PWs deposed against you" he stated as under:- "PWs are inter se related with each other, due to which they have deposed against us and gave statement on the basis of dispute of road." The replies furnished by the remaining accused were also similar.

10. The trial culminated into conviction and sentence of the appellants and acquittal of their co-accused as mentioned in the opening paragraph. Hence this appeal.

11. The learned counsel for the appellants has argued that the case has been registered against the appellant with mala fide intention after due deliberation and consultation; that motive in this case is shrouded in mystery and the prosecution has failed to establish the motive; that the prosecution has failed to establish its case through evidence. Further argued that in this case allegedly two persons were murdered and six persons were injured but surprisingly only one PW namely, Munir Ahmad, injured appeared before the learned trial court in support of the prosecution evidence; that both the deceased were caused one injury each which are attributed to Sabir and Khalid accused who are proclaimed offenders; that Abdul Qadeer, appellant is a crippled person, therefore, he cannot participate in the occurrence or cause injury to anyone. Further argued that PW9 Manzoor Ahmad Muth Inspector/SHO found all the accused innocent during his investigation which was verified by SDPO Circle Lodhran but this witness was got declared hostile by the learned counsel for the complainant; that PW9 in his investigation found that accused Abdul Qadeer did not participate in the occurrence and he was an abetter; that lady Dr. Sadia Bashir, PW10 while examining Mst.Nasim Mai, injured opined that her injury was caused by blunt weapon and the probable duration was within 5 to 6 days which shows that something happened 5/6 days ago which fact has been concealed by the prosecution; that PW7 Dr. Riaz Ahmad medically examined Abdul Qadir injured and opined that the probable duration of injuries was 24 hours which shows that the occurrence took place one day ago and surprisingly this injured was also not produced before the Court which creates doubt on the veracity of the story of the prosecution. Further contended that the prosecution challenged the acquittal of co-accused through Criminal Appeal No.772 of 2009 but the same dismissed by a Division Bench of this Court vide order dated 11.02.2010, therefore, the same benefit should be extended to the appellants.

12. Conversely, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and supported the impugned judgment. They further contended that it was a broad day light occurrence and the accused committed the occurrence after constituting an unlawful assembly; that the ocular account furnished by PW1 Mushtaq Ahmad, PW2 Sijjad Hussain and PW3 Munir Ahmad is fully corroborated by the medical evidence; that the place and time of occurrence was never challenged by the defence; that an application (Mark-A) was made to Manzoor Ahmad Muth, Inspector/PW9 two days before the instant occurrence but he did not record the version of complainant, which resulted into present occurrence; that Mushtaq Ahmad, PW1 and Sajjad Hussain, PW2 in their statements specifically nominated all the appellants with their specific roles; that from the place of occurrence 15 empties were recovered and the weapons of offence were duly recovered from the accused and the report of the Forensic Science Laboratory is in positive; that Munir Ahmad, PW3 was also injured during the occurrence and he remained admitted in Hospital at Bahawalpur for one month and he duly nominated the accused for the occurrence; that the investigation conducted by PW9 Manzoor Ahmad Muth, Inspector was not verified by the SP who ordered for re-investigation of the case in which all the accused were found fully involved in the occurrence.

13. I have heard the learned counsel for the parties and perused the record with their assistance.

14. Firstly, I would discuss the motive part. It has been alleged over dispute of property but the same has not been established through any evidence. Furthermore, according to the prosecution story, the PWs were ploughing the fields but the said instruments were never taken into possession by the police or shown in the site plan of the place of occurrence. No evidence has been produced from both sides that to whom actually has possessed over disputed property, therefore, the motive in this case is shrouded in mystery.

15. The prosecution alleged that six persons received injuries from their side but strangely enough only one Munir Ahmad, PW3 appeared before the court and the remaining five injured never appeared in support of the prosecution case which fact is a question mark. Injured persons had not appeared before the trial court, therefore, the accused cannot be convicted on the said injuries attributed to the same injured, who was not appeared before the Court. On this situation, I seek guidance from case law titled "Ghulam Rasool and others v. The State" (1997 PCrl.LJ 967) wherein it has been held that "

Injured prosecution witness having not entered the witness-box and no explanation appearing on record for her such conduct, accused could not be convicted for the injuries allegedly caused by him on her person and he was acquitted of the charge under section 307, P.P.C.

Examination of fire-arm injuries received by the deceased revealed a definite possibility of the fire-arm injury attributed to accused having been caused by co-accused, benefit of which was to go to, the accused

Accused was also acquitted of the charge under section 302/34, P.P.C. in circumstances". The injury caused by said Munir Ahmad PW3 is attributed to Abdul Qadeer, appellant. No doubt, opinion of the police officer regarding the innocence or guilt is not an admissible in evidence. The Court can conclude the case on the evidence produced before the trial court. There is another important fact that during the investigation conducted by Manzoor Ahmad Inspector, PW9 all the accused were found innocent during his investigation and the said witness was got declared hostile by the prosecution itself. On the same evidence, co-accused who were nineteen in number were acquitted by the learned trial court. Their acquittal was challenged before this Court through Criminal Appeal No.772/2009 but the said appeal has been dismissed by a Division Bench of this Court vide order dated 11.02.2010, which has not been challenged at Apex Supreme Court of Pakistan. So far as the case of Nasir appellant is concerned, according to the complainant PW1 Mushtaq Ahmad, he was armed with Repeater gun and he along with Sabir accused made fire shot upon Fayyaz, deceased who succumbed to the injuries. Sabir accused is since proclaimed offender. According to Dr. Riaz Ahmad, PW7, multiple (about 45) pellet wounds were seen upon the body of Fayyaz deceased. It is an established principle of law that the prosecution has to stand on its own legs which the prosecution in this case failed to establish against appellants, Shakeel, Yasir and Azhar, therefore, by extending benefit of doubt to them, this appeal to their extent is allowed, their conviction and sentence is set aside and they are acquitted of the charge. They are on bail by way of their suspension of sentence, therefore, their sureties are discharged.

16. As far as the case of Ali Bahadar and Nasir, appellants are concerned, the prosecution case is that Ali Bahadar and Khalid (P.O.) while armed with Repeater made fire shot upon Abdul Hakeem, accused who succumbed to the injuries at the spot. Likewise, Nasir, appellant and Sabir (P.O.) made straight fire shot upon Fayyaz Ahmad deceased who also succumbed to the injuries. The prosecution has duly proved its case against them by ocular account corroborated by medical evidence. As appellants, Ali Bahadar and Nasir have not repeated fire shots, therefore, the learned trial court has already taken lenient view by not awarding them capital sentence of death, therefore, their conviction and sentence is upheld and to their extent this appeal stand dismissed. Appellants Ali Bahadur and Nasir are also on bail by way of their suspension of sentence, learned trial court is directed to issue necessary warrants for their arrest and commit them to jail for serving out their remaining sentence.

17. As far as case of appellant, Abdul Qadeer is concerned, according to the prosecution, he while armed with Repeater 12-bore made fire at Munir Ahmad, PW3 and which duly finds mention in his medico legal report. The record shows that Jamshaid accused was also attributed firearm injury upon Munir Ahmad, PW3 but said Jamshaid was acquitted by the learned trial court. He is not attributed any injury to both the deceased. Admittedly, he is a crippled person and cannot walk and run easily. According to the prosecution, the occurrence was committed on the instigation of Abdul Qadeer, appellant and the motive is also alleged against him but the same has not been proved during the trial, therefore, the conviction of Abdul Qadeer, appellant is upheld, however, by considering the fact that the prosecution could not prove motive against him, his sentence is altered to one already undergone by him. Sentence of compensation and fine is maintained. He is on bail by way of his suspension, at present, his surety is discharged. However, he is given one month time to deposit the amount of fine and compensation with the trial court, in default whereof the same shall be recovered from him as arrears of legal revenue. The instant appeal stands disposed of in the above terms. MH/Y-1/L Order accordingly.