1982 P Cr (PLP)

(3) One lacerated penetrating wound about 3/4" in diameter on the front of left leg near the ankle joint. (4) One lacerated penetrating wound about 2?? in diameter and multiple just head sized wound in the epigastric region. (5) One lacerated penetrating wound about 2" in diameter and multiple pin head sized wounds in the front of lower abdomen. (6) One lacerated penetrating type of wound about 1/2" in diameter on the left front temporal region in front of left ear. (7) One lacerated penetrating wound about 1? in diameter at the back of the head occipital region. (8) One lacerated penetrating wound about 1?? in diameter at the front of left chest above the nipple. (9) Lacerated penetrating wound about 1" in diameter at the middle of the back on the thorex region. On internal examination I noted fracture of left frontal, temporal and occipital bones. The brain matter was lacerated and had come out of injury No.

6. Left pleura was lacerated. Heart was punctured. Both chambers were empty. Walls of abdomen were lacerated, so also the peritoneum and stomach. The stomach was empty. Large and small intestines contained semi‑solid faecal matter and semi‑liquid food. Left kindney was torn into multiple pieces. Bladder was punctured at several places. Left tibia was fractured at lower 1/3rd. From external and internal examination of the dead body I am of the opinion that the death was due to shock and haemorrhage as a result of the above injuries. All the injuries were ante‑mortem and appeared to have been caused by shot from fire‑arm such as a shot? gun. Each and every injury excepting 2 and 3 was sufficient in the ordinary course of nature to cause death. Death was instantaneous, and about 12 to 24 hours before post‑mortem. I issued post? mortem notes which I produce Exh.

17. It is same and bears my signature."

7. The point for determination is if the appellants have committed the murder of the deceased ?

8. At the trial, the prosecution examination complainant who is brother of the wife of the deceased Ahmed Khan, Khakoo alias Abdul Khaliq.(P. W. 2) who was co‑accused with the deceased in a murder case of one Bilawal which is the motive for commission of this offence. Ahmed (P. W. 4) who is also an eye‑witness and is hari of the deceased. He has however, been declared hostile. His statement recorded under section 164, Cr. P. C. has been brought on the record but it cannot be used against the appellants being not recorded in their presence. Saeendad (P. W. 6) is the owner of the hotel where the incident took place. He has not implicated the appellants and has therefore been declared hostile. Allahdino (P. W. 5) is a corroborative witness who has seen the accused running away immediately after the incident. He is son‑in‑law of the deceased. His brother Allahdino was co‑accused with the deceased and P. W. Khakoo in the murder case in which the deceased Bilawal was killed. The complainant Haji Ahmed as well as Khakoo alias Abdul Khaliq have supported the prosecution case and have stated that they saw accused Ali Murad firing at the deceased. The motive for commis?sion of this offence has come through evidence of the complainant and P. W. Allahdino.

9. Mr. Mohammad Hayat Junejo, the learned counsel for the appellants contends that the evidence against the appellants is also same as that against the co‑accused who have been acquitted by the trial Court. The only difference being that the appellants further claimed that they were in judicial custody on the day of incident at `Jhal‑Magsi' in Baluchistan Province and the trial Court came to conclusion that they failed to prove the plea of their defence. It has also been pointed out by him that the trial Court has not believed the evidence of the complai?nant and all other witnesses in respect of the acquitted accused. Since co‑accused have been acquitted on the same evidence there was no case against the appellants also who were equally entitled to benefit of doubt under the circumstances of the case. It has also been contended by him that their conviction on account of their plea of false defence was not sustainable in eye of law. He relied upon: (i) Sabu v. State P L D 1966 Kar. 637. (ii) Khurshid Ahmad v. Kabool Ahmad P L D 1964 Kar. 356. (iii) A I R 1925 Lah. 42, (iv) Sadiq v. State P L D 19'7 S C 356. (v) 1979 S C M R 557, (vi) A I R 1946 P C 38, and (vii) Lashkari v. State P L D 1981 Kar. 1.

10. Mr. R. A. Qureshi, the learned counsel appearing for the State is also of the view that the appellants were equally entitled to benefit of doubt as no case for conviction of the appellants has been made out by the prosecution. Since prosecution has failed to establish its case against the appellants they cannot be convicted on the basis of their plea of defence being false. He, therefore, does not support the judgment of the trial Court.

11. I have considered the contentions of the learned counsel for the appellants as well as State. The trial Court has not believed the evidence of the Complainant Ahmed (P. W. 1) Khakoo alias Abdul Khaliq P. W. 2, Saeendad P. W. 6 who is owner of the hotel. He has not implicated the appellants and has therefore been declared hostile. Ahmed P. W. 4 has also been declared hostile. The evidence of Allahdino P. W. 5 will not be of any help to the prosecution as even the trial Court has come to conclusion that he was not an independent witness being son‑in‑law of the deceased. There is no recovery of any incriminating article from the appellants so as to connect them with the offence. There remains only evidence of the complainant Khakoo alias Abdul Khaliq and Allahdino who are also highly interested and related to the deceased and inimical to the accused. I have given anxious thought to all the aspects of the case and am very clear in my mind that no person can be convicted on account of a false plea taken by him in defence. Even if the defence plea A is totally false still the burden lies on the prosecution to prove its case beyond reasonable doubt which has not been done in this case. The case of the appellants is exactly identical to that of the acquitted accused except that the plea of defence taken by them according to the trial Court was not established which cannot be basis for their conviction under the circumstances of the case.

12. In the result, I, therefore, accept their appeal, set aside their convictions and sentences awarded to them by the trial Court and acquit them. The Judgment of this appeal was announced earlier by a short order and these are the reasons for it. Appeal allowed.