2003 PLP 1125 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.567 of 1998 filed by Muhammad Hani; and Criminal Appeal No.660 of 1998 filed by Sher Bahadur, appellants Both the appellants were convicted and sentenced by learned Additional Sessions Judge, Chunian vide judgment dated 4-6-1998 as under:-- Muhammad Hanif Death under section 302(b)/34, P.P.C. and 5 years' R.I. under section 336/34, P.P.C. Sher Bahadur Imprisonment for life under section 302(b) read with section 34, P.P.C. and 5 years' R.I. under section 336/34, P.P.C. Both the sentences were ordered to run concurrently. Murder Reference No.287 of 1998 for confirmation or otherwise of death sentence of Muhammad Hanif, appellant. shall also be replied through this single judgment.

2. Occurrence in this case had taken place after Maghrab prayer on 23-6-1995 at a distance of 18 kilometres while the matter was reported to the Police through written complaint Exh.P.B. by Khushi Muhammad at 11 p.m. on the same night Chowk Bho-e-Asal and the formal F.I.R. Exh.P.B/1 was recorded by Muhammad Zakriya, Head Constable.

3. Briefly stated the facts of the case are that complainant Khushi Muhammad had five sons. The elder one Muhammad Javed is employed in Police performing duties at Qurban Lines, Lahore. Muhammad Pervaiz, the other son of Javed could not pass the matriculation examination. The remaining three sons of the complainant were studying. Muhammad Javed had come on leave for three days. On 23-6-1995, the complainant after having meal went to the hotel of Jan Muhammad. After having beverage, he started for home back and when reached near mosque Chowkwali, there Muhammad Pervaiz his son also reached on the grocery shop of Abdul Majid. From the VCR shop of Zuliqar, Muhammad Hanif armed with 30 bore pistol and Sher Bahadur empty-handed emerged. Sher Bahadur raised Lalkara to kill Muhammad Pervaiz. Upon said Lalkara Muhammad Hanif fired a shot which hit Muhammad Pervaiz on his chest towards left. The second and third shots fired by Muhammad Hanif landed on abdomen and flanks of Muhammad Pervaiz. On hearing the noise of firing Muhammad Javed, the other son of the complainant came out and he too was fired at by Muhammad Hanif which hit near his nose towards right side. Muhammad Pervaiz succumbed to his injuries at the spot. The motive alleged was that daughter of. Muhammad Younas, first cousin of the complainant was married in the village Deh. On this marriage, a quarrel had taken place between laved and Muhammad Hanif and firing also took place. Later on, due to intervention of the respectable, the matter was compromised. Allegedly, due to this grudge, Muhammad Hanif etc. had committed the murder of Muhammad Pervaiz. Muhammad Javed was also taken to hospital.

4. Investigation of the case Was taken over by Muhammad Rafique S.-I. (P.W.12). Hence, after registration of the formal F. I. R., visited the spot, prepared the injury statement Exh. P.J., inquest report Exh. P. K., recorded supplementary statement of the complainant, prepared rough site plan Exh. P. L. , took into possession the blood-stained earth vide. memo. Exh. P. F.2. crime empties P.6 and P.7 of 30 bore pistol were secured vide memo. Exh.P.G. and on 29-6-1995 he recorded the statement of Muhammad laved, the injured. Muhammad Hanif accused was arrested on 2-7-1995 and the accused while in custody led to the recovery of Churri P.4 which was taken into possession vide memo. Exh. P. D. The accused also got recovered pistol 30 bore P.5 which was secured vide memo. Exh.P.E. Sher Bahadur accused was arrested on 15-7-1995. After completion of investigation, both the accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned DDA tendered in evidence reports of the Chemical Examiner Exh.P.M. Exh.P.N., reports of the Serologist Exh. P.O., Exh. P.P., report of the Forensic Science Laboratory Exh.P.Q. and closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr. P. C. in. which they pleaded false implication. However, after conclusion of the trial, the accused were convicted and sentenced as stated above.

6. Learned counsel for the appellants after having read the entire prosecution evidence, and other material available on record submits that it was a night time occurrence; the F.I.R. was lodged with considerable delay; Khushi Muhammad and Abdullah P.Ws. were not present at the spot; Muhammad Javed injured P.W. is real brother of the deceased, he did not see anybody causing injuries on the person of the deceased; there is conflict between ocular account and the medical evidence, recovery of knife and .30 bore pistol have been planted upon Muhammad Hanif appellant; no independent witness has been produced by the prosecution to prove its case, Sher Bahadur appellant is real brother of Muhammad Hanif appellant, so the possibility of his false implication cannot be ruled out and that only proverbial Lalkara was attributed to him.

7. Learned counsel for the complainant submits that in fact on the very day of occurrence, Khushi Muhammad, the complainant got recorded his supplementary statement stating therein that Muhammad Hanif, appellant gave Churri blows on the person of Muhammad Pervaiz the deceased and then caused fire-arm injury on the person of Muhammad Javed, the injured P. W ocular account is fully corroborated by medical evidence, Muhammad Hanif, appellant got recovered knife and .30 bore pistol, reports of the Fire-arms Expert, Chemical Examiner and that of Forensic Science Laboratory are positive in nature; the prosecution had no reason to falsely implicate the appellants; the witnesses are independent and that no confrontation was made by the learned defence counsel. He supports the judgment of the trial Court in toto.

8. Learned counsel for the State submits that there is lot of difference between fire-arm and knife, hence there is clear conflict between ocular account and the medical evidence so far injuries on the person of Muhammad Pervaiz, the deceased are concerned and as far as injury on the person of Muhammad Javed, the injured P.W. is concerned, that is corroborated by ocular account. He supports the judgment of trial Court qua injury by Muhammad Hanif on the person of Muhammad Javed, injured P.W.

9. We have heard learned counsel for the parties and have gone through the impugned judgment and evidence on record. In the instant case, the occurrence had taken place after Maghrab prayer on 23-6-1995. The matter was reported to the Police on the same night at 11 p.m. through written complaint Exh.P.B. at Chowk Bho-e-Asal and formal F.I.R. Exh.P.B./1 was recorded at 12-05 (mid-night) though distance between the place of occurrence and Police Station was 18 Kiometres. So, it can easily be ascertained that it was a case of delayed F. I. R. and more so the same was not recorded in the Police Station. According to F.I.R., Muhammad Hanif, appellant while armed with .30 bore pistol caused three injuries on the person of the deceased which hit on left side of chest, left flank and front side of abdomen. Thereafter, on hearing the noise of shots, Muhammad Javed, injured P.W. came out and he too was fired a shot which hit near his nose towards right side. The post-mortem on the dead body of deceased was conducted by Doctor Mushtaq (P.W.5). The evidence of the said doctor is at page 29 of the paper book. According to report of the doctor, there were four stab wounds and two abrasions on the person of Muhammad Pervaiz, the deceased. There was no injury with fire-arm on the person of the deceased. There is thus clear conflict between ocular account and the medical evidence. There is lot of difference between a .30 bore pistol and knife. Had Khushi Muhammad, complainant, father of the deceased been present at the spot, he must not have committed such a big mistake while getting the F.I.R. lodged. The noise is created only when a shot is fir6d with fire-arm and if injuries are caused with knife, the cries of victim can be heard. No doubt the crime empties recovered from the spot matched with .30 bore pistol recovered on the pointation of Muhammad Hanif, appellant and report of the Serologist with regard to human blood on the knife which too was recovered on the pointation of the appellant was positive in nature, but those do not advance the case of prosecution in view of the clear conflict between eye-witness account furnished by real father of the deceased and the medical evidence. Even if it is assumed that the supplementary statement was made by the complainant just after lodging F.I.R., then the Investigating Officer should have mentioned the use of sharp-edged weapon (Urdu) in Column No. 12 of the inquest report which was prepared by the Investigating Officer after visiting the spot. In the brief facts of the inquest report, the weapon used by Muhammad Hanif accused was shown to be pistol and not the knife. In these circumstances, when there is clear conflict between ocular account and the medical evidence so far as injuries on the person of Muhammad Pervaiz, the deceased, a case for benefit of doubt has been made out by Muhammad Hanif, appellant. Accordingly, while extending the said benefit, we set aside the conviction and sentence recorded against him by the trial Court under section 302(b), P.P.C. and acquit him of tile charge. His death sentence is NOT confirmed and Murder Reference is replied in the NEGATIVE. As far as injury on the person. of Muhammad F Javed, the injured P.W. is concerned, that stands fully proved because according to statement of Dr. Mushtaq (P.W.6) who medically examined the injured stated that Javed had lost the vision of his one eye. So, the sentence awarded to appellant for causing injury on the person of Muhammad Javed P.W. is maintained. The benefit of section 382 B, Cr. P. C. being mandatory is however, granted to appellant. No compensation was directed to be paid by the trial Court. We have issued notice to learned counsel for the appellant Muhammad Hanif which he accepts. So, we direct that Muhammad Hanif shall pay compensation to the tune of Rs.50,000 to Muhammad Javed, the injured P.W. and in case of default, he would undergo S.I. for further six months. We may observe here that the trial Court did not convict and sentence Muhammad Hanif, appellant under section 324, P.P.C. but since there is no appeal filed either by State or the complainant, nothing can be done at this stage. Sher Bahadur appellant is real brother of Muhammad Hanif, appellant. Only Lalkara was attributed to him. The possibility of his false implication being real brother of Muhammad Hanif, his co-appellant thus, cannot be ruled out. Hence while extending the benefit of doubt qua him we accept the appeal filed by Sher Bahadur appellant and acquit him oil the charge. Conviction and sentence recorded against the appellant is set aside. He is on bail and shall stand discharged from bail bonds. N.H.Q./M-1805/L Order accordingly