P L D 1993 Lahore 434 (PLP)

~ The criminal appeal has been filed -against the judgment dated 30-11-1989 passed by the learned Addl. Sessions Judge, Bahawalnagar whereby the appellant was convicted and sentenced under section 302, P.P.C to undergo imprisonment for life and a fine of Rs. 10,000, in default of payment of fine two years' R.I. T fine, if recovered was to be paid to the legal heirs of the deceased as compensation. 2. , The appellant alongwith Faiz Ahmad and Mumtaz was tried for the murder of Ali Sher, deceased and the co-accused Faiz Ahmad and Mumtaz were acquited vide impugned judgment.

3. Briefly the -prosecution case is that P.W.3, Falak Sher lodged F.I.R Exh.PB on 11-11-1988 at 7-00 p.m. at Police Station Donga. Bonga District Bahawalnagar to the effect that he was a cultivator and resident of Mauza Murad Kharal. On 11-11-1988 at about 3/4 p.m. he alongwith Niaz Ahmad P.W.5, his son P.W. Noor. Hassan (given up as unnecessary), a relation of complainant P.W. 3 were sitting on the shop of Ali Sher, deceased, brother of the complainant and were talking. Ali Sher deceased was sitting oil the cash box and was busy in accounts whereas the PWs were sitting on a bench on the other side when suddenly the appellant armed with a gun, Faiz Ahmad, armed with gun and Mumtaz, empty handed (both acquitted co-accused) reached at the spot. The acquitted co-accused raised lalkara that Ali Sher, deceased should not be spared on which Muhammad Hanif, appellant fired with his gun on Ali Sher, deceased which had hit on his chest and he started fluttering. The P.Ws. forwarded to rescue Ali Sher, deceased but all the accused ran away. Ali Sher succumbed to the injuries at the spot after some minutes.

4. The motive behind the occurrence was that about 15/16 years earlier, Muhammad Hanif, appellant's sister Mst. Sahib Zadi was engaged with the deceased but the deceased broke the engagement and the appellant had been meeting with them and due to that grievance, the accused had murdered the deceased. Leaving behind to guard the dead body, P.W.5 and Noor Hassan P.W. (given up) P.W.3 reached Police Station to lodge F.I.R. Exh. PB which was recorded by P.W.8.

5. P.W.7, Naveed Iqbal, A.S.I. reached the spot, collected blood-stained earth vide memo Exh.PD and also secured empty PA from the spot vide memo Exh.PE attested by P.W.5 and Noor Hassan (given up). After completion of investigation, the appellant was challaned only. After recording the statements of P.Ws., acquitted co-accused Faiz Ahmad and Mumtaz were summoned as they have not been challaned by the police.

6. The appellant and his acquitted co-accused were charged under section 302/34, P.P.C. to which they denied and claimed trial. 17. , The prosecution had examined eight P.Ws. to substantiate its case

8. The prosecution case rests upon motive, ocular testimony,, medical evidence and recoveries.

9. P.W.3, Falak Sher in F.I.R. txh.PB had stated the motive behind the occurrence i.e. about 15/16 years earlier to the present occurrence, Mst. Sahib Zadi, sister of the appellant was engaged with the deceased and the same was broken by the deceased immediately and the appellant had a grievance for the same but had been meeting with the complainant party. P.W.5, Niaz Ahmad also stated that during his childhood, sister of the appellant was engaged with Ali Sher, deceased and the said engagement was broken due to which the appellant had a grudge against Ali Sher, deceased. During cross-examination P.W.5 further stated that sister of the appellant was engaged with the deceased about 15/16 years ago and it was broken and had also stated that it was correct that Mst. Sahib Zadi was married with one Ghulam Nabi, when aged about 22/23 years and from' the said wedlock, a son namely Abdul Shakoor was born who was aged about 20/21 years, at the time of occurrence and was employed in the rangers.. P.W.3 during cross-examination had stated that Abdul Shakoor, son of said Mst. Sahib Zadi from her husband, Ghulam Nabi is aged about 21 years and is serving in Rangers and when the engagement of Ali Sher, deceased was broken with Mst. Sahib Zadi and the accused had tried to attack upon Ali Sher deceased many times within a period of 2/3 years and he had reported the matter to Donga Bonga Police Station but could not produce any copy of those reports.

10. The age of the appellant as recorded by the trial Court is 28 years. It is pertinent to mention here that at the relevant time when the alleged engagement was broken between sister of the appellant and the deceased, the appellant would be of the age of 2/3 years. The marriage of the sister of the appellant had taken place about 22/23 years ago with Ghulam Nabi and a son named Abdul Shakoor, aged about 20/21 years was born from the said wedlock who is serving in the Rangers. P.W.3 in his statement before the Court and as in the F.I.R. Exh.PB had stated that the engagement was broken 15/16 years ago and thereafter he had lodged reports about some incidents of quarrel between the deceased and the appellant but none of those has been produced by the prosecution. The motive alleged against the appellant is an old one and none has come forward except the real brother (P.W.3) and nephew (P.W.5) of the deceased to state about the motive and the same had also been falsified by their statements as Mst. Sahib Zadi, sister of the appellant was married 22/23 years earlier and her son of the age of 21 years is serving in Rangers and how an engagement of a married woman could take place?, the motive alleged by the prosecution had not been proved on record. The foundation of the case of the prosecution i.e. alleged motive is shaky one.

11. The ocular testimony on record has been furnished by the statements of P.W.3, Falak Sher, complainant, real brother of the deceased and P.W.5 Niaz Ahmad, real nephew of the deceased and son of P.W.3. P.W. Noor Hassan, an independent witness mentioned in the F.I.R. Ex. PB was not produced by the prosecution. P.W.5, during cross-examination had stated that about 4/5 persons reached at the place of occurrence during the period when the accused fired at the deceased and they placed him on a cot outside the shop. Their names were Manzoor son of Sardar Din, Noor Ahmad son of Sardar Din and Zahoor Ahmad son of Noor Ahmad etc. but had volunteered that they also belong to the rival party. P.W.5 had further stated that about 40/50 persons of the village were present at the place of occurrence at the time of the arrival of the police .P.W.3 during cross-examination had stated that real paternal-aunt of Zahoor Ahmad son of Noor Muhammad was married with Ghulam son of Ismail and said Ghulani Sahi was murdered in th ' e year 1977 and P.W.3 alongwith the deceased was challaned in the said case. P.W.3 was convicted for life imprisonment by the Sessions Judge, Bahawalnagar whereas the deceased was acquitted and at the time of the present occurrence, P.W.3 was on bail as his appeal was not yet decided. Admittedly, there was enmity between the parties.

12. The medical evidence on record has been furnished by the statement of P.W.4, Dr. Khalid Ahmad who had conducted the autopsy on the dead body of the deceased on 12-11-1988 and had found six injuries caused with fire-arm. All the injuries were anti-mortem and were sufficient to cause death in the ordinary course of nature. During cross-examination P.W.4 had stated that the fire at the deceased must have been made from a long distance and the same could be more than 20 to 30 feets and it was correct that if the assailants and the deceased were facing each other, these injuries could not be inflicted. P.W.3 in F.I.R. Ex. PB and before the trial Court and as well as P.W.5 have stated that the appellant had fired one shot with his gun at the deceased which had hit on his chest but all the injuries are not on the chest of the deceased as is evident from injuries Nos. 1 to

6. Injury No.1 was on the anterior side of right arm in middle with burns and blackening on the clothes which was -not possible to have been received by the deceased from a distance of 20 to 30 feet as stated by P.W.4 during cross-examination. Injuries Nos. 4, 5 and 6 were not on the front side as is evident from the diagrams Exh. PC/1 and PC/2. The medical evidence is not in consonance with the ocular testimony furnished by the statements of P.Ws.3 and

5. P.W.7, Naveed lqbal, A.S.I. on his first visit at the place of occurrence secured empty PA from the spot and had made it into a sealed parcel vide n6o. Exh.PD attested by P.W.5 and Noor Hassan (given up). The appellant was arrested on 25-11-1988 and on the same day, he led to the recovery of P.6 which was secured by P.W. 7 vide memo Exh. PG attested by P.W.7 and P.W.5. P.W.5 had stated that the appellant was arrested on the day of occurrence and gun P.6 was recovered by P.W.7 vide memo Exh. PG attested by him as stated by him in a case under section 13 of Arms Ordinance XX of 1965 but in the trial Court he had stated otherwise. The report of Forensic Science Laboratory Exh.PN is not positive.

13. The appellant when examined under section 342, Cr.P.C. had denied the prosecution evidence and had stated that he was falsely involved due to enmity. He produced documents Exh.DC to Exh.DF but had not made statement on oath is envisaged. under section 340(2), Cr.P.C. In answer to a question, the appellant had stated that he alongwith his father was supporting to the opponents of the deceased who had grudge against him as he was serving in the police and he thought the appellant a great hurdle in his way and for this reason he had been falsely taken as assailant of the deceased. 14. 1 have heard the learned counsel for the parties and perused the record. No doubt, P.W.3, complainant is real brother of the deceased and P.W.5 is real nephew of the deceased and son of P.W.3 and the occurrence is stated to have taken place in a broad daylight and it is urged on behalf of the State that P.W.3 could not substitute the appellant with real culprits as substitution is a real phenomena and the F.I.R. was lodged promptly.

15. The motive as mentioned supra has not been believed by this Court i.e. the foundation of the prosecution is shaky one and if the motive is alleged and is not found to be proved and confidence inspiring, the Court has to look towards the very strong independent corroboration. No evidence was produced by the prosecution to corroborate the statements of P.Ws.3 and 5 although P.W.5 has clearly named 3/4 persons who were present at the relevant times and they were neither cited as P.Ws. nor produced in the Court. No person from the vicinity has been produced to corroborate the statements of P.Ws.3 and

5. The ocular testimony furnished on record by P.Ws.3 and 5 is not in consonance with the medical evidence furnished on record by the statement of P.W.4. The report of the Forensic Science Laboratory Exh. PN is not positive. The statements of P.Ws3 and 5 have not been corroborated by any independent evidence on record. P.Ws.3 and 5 are closely related to the deceased, interested and had a motive to falsely involve the appellant. Move over, the recovery aspect had also not been proved on record.

16. Pursuant to the above discussion, I am of the view that the prosecution had failed to establish its case beyond doubt against the appellant and giving him benefit of doubt, I acquit him of the charge. The appellant is in jail, who shall be released forthwith if not required in any other case. N.H.Q./M-985/L Appeal accepted.