1987 P Cr (PLP)

(4) Firearm wound of entry 4 x 3 c.m. x going deep into chest cavity on the back of left chest at the level of last rib, posteriorly along the left side of the spine. There was blackening, tattooing and scorching around the wound. There was corresponding hole on the back of the shirt. There was multiple contusion on the front outer side of left chest and abdomen. Under the contusion small pellets were felt with fingers in the area of 20 c. m. x 16 c. m. On dissection, he found infiltration in the subcutaneous tissue, and fat inside of left side of chest and abdomen 17 in number are removed from this site. Last rib on the left side of the chest posteriorly was fractured, the left lung and pleaural. The left kidney was injured. There were five holes on the left and right ventricles of heart. On right side of chest, 7th/8th and 9th ribs were fractured. The whole liver was crushed. Diaphram right side was injured. Clotted blood in the chest cavity was present. Death was opined to be, due to shock and haemorrhage, resulting from the injuries. Injuries Nos. 1, 2 and 4 were opined to be sufficient to cause the death individually and collectively in the ordinary course of nature. He had also noted that he had handed over to the police two empties (Khali Kartus) alongwith the dead body, the papers and the foil containing pellets. About the empty cartridges (Khali Kartus) he explained that they were in fact wadds of the cartridges which he had found from within the body under the seat of injury and had inadvertently noted them to be empty cartridges.

8. At the trial prosecution in all examined twelve witnesses. The gist of the statement of Dr. Sultan Ali P.W.7 has been noted above. The ocular account was deposed to, by Syed Talib Hussain complainant P.W.8 and Ghulam Hussain P.W.9. Syed Talib Hussain re-narrated the facts given by him in the F.I.R. Ghulam Hussain corroborated his testimony. Syed Talib Hussain conceded in cross-examination that he had not produced the ex parte decree said to have been obtained by the deceased in the suit for dissolution of marriage and the Nikahnama of the second marriage of the deceased with the other Mushtaq. Ghulam Hussain, who belonged to another village, stated that he had taken up residence with the father of the deceased a month before the occurrence in order to assist him in cultivation. He is son of brother of mother of the deceased. He conceded that neither he was registered as a voter in the village nor his name appeared in the Khasra Girdawari of any land under his cultivation in the village. Muhammad Hussain Patwari P.W.10 admitted that there are inhabited houses one-Acre away from the place of occurrence. Ghulam Hussain P.W.9 stated that he remained at the spot with the dead body till the arrival of the police. His statement in this regard finds corroboration from the statement of Syed Talib Hussain who also stated that Ghulam Hussain remained near the dead body when he had gone to lodged the report. P.W.9 clearly stated in cross-examination that the police officer had recorded his statement, the statement of the given up P.W. Muhammad Latif and Syed Talib Hussain at the spot. He also stated that thumb-impression of Syed Talib Hussain was obtained by the Police Officer.

9. The evidence of recovery of empties from the spot and of the blood-stained earth having been taken into possession from the spot, has been deposed to, by Najmul Hassan P.W.5. His statement in this regard finds corroboration from the statement of Mirza Talib Hussain, S.I. P.W.11.

10. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case. He denied that the deceased had obtained any ex parte decree or that she was re-married to Mushtaq son of Nur Muhammad. He also denied the marriage of Mst. Zakia Bibi with Syed Talib Hussain P.W. He, however, admitted that the suit filed by the deceased for dissolution of marriage in Chiniot was pending and Mazhar Hussain had filed written statement in that suit. He refuted the prosecution case that he was arrested on 20-3-1984. According to him, he was taken into custody by the police on 22-3-1984. His licensed gun was also obtained on the same day and the S.I. at the time of taking the gun into possession had fired shots from the gun. In answer to the question, "why this case against you", he stated as under:

"The deceased had illicit relations with one Riaz nephew of the tenant of her father and also with Latif P.W. from which I checked her. She was annoyed over it. Left the house of my brother. Her father demanded the divorce from my brother and wanted her to marry her with Ghulam Hussain P.W. to which we did not agree. Due to this grudge I have been falsely implicated."

11. The prosecution case rests on the evidence of motive, evidence of recoveries of empties; licensed gun, report of the Forensic Science Laboratory about empties having been fired from the licensed gun produced by the appellant, the medical evidence and the ocular account.

12. The evidence of motive was disbelieved by the learned trial Judge. The conclusion arrived at by the trial Judge in this regard does not call for any interference, in view of the fact that the complainant had neither produced copy of the ex parte decree said to have been obtained by the deceased against Mazhar Hussain, nor had produced second Nikahnama of the deceased with Mushtaq son of Nur Muhammad. With regard to the motive of murdering the deceased for obtaining the land of the father of the deceased, enough to say, that the appellant being not an heir of Syed Talib Hussain P.W. in any degree, he could not have inherited the land. Moreover, the land would have devolved, after the death of Syed Talib Hussain P.W., on the deceased. On the other hand, if the deceased had remained alive and her father had died earlier, she would have inherited the property of her father, which would have devolved on her husband, who is brother of the appellant, in case of subsistence of marriage. Obviously, the motive set up by the prosecution does not lend any support to the prosecution case.

13. The evidence of the Ballistic Expert also does not possess any weight, in view of the fact that the recoveries of empties from the spot, found to have been fired from, the licensed gun of the appellant, is not worth reliance. It is prosecution's own case that the deceased was fired at from a short distance of about one feet and she had fallen there and died on the spot. Obviously, the crime empties must by lying nearby. Even if it is granted for the sake of argument that the complainant in moments of anxiety had failed to note the presence of the empties when he had gone to lodge the F.I.R., it cannot be granted by any stretch of imagination, that Ghulam Hussain P.W. would not have noted the presence of the empties said to have been lying so near the dead body. It has been categorically stated by the S.I. that he had recorded the statements of the witnesses at the spot on 21-3-1984 and none of them had claimed that he had seen the empties lying there. According to him, he had despatched the dead body of the deceased, after preparing injury statement and the inquest report. While preparing the injury statement, he must have gone near the dead body, rather would have touched the same for examination of the injuries. By going so close to the dead body, he could not have failed to observe the empties which were lying within an area of one foot from the dead body. The excuse that he had not inspected the spot on visit on 21-3-1984 because of non-availability of light, is obviously a lame excuse because if he could prepare documents and observe injuries, he could have observed the empties lying close by too. it is not a case where empties were found to be lying at some distance from the dead body. It is not even the case that the empties were found spread over. In the site plan prepared by the Patwari, no point has been shown where the empties were lying. The only note recorded with red ink by the S.I. indicates that the blood-stained earth and the empties were found from the same point. This again shows that the empties were lying just close to the dead body. The plea of the appellant that he was taken into custody by the police on 22-3-1984 and his licensed gun was also taken into possession on the same day, finds support from the statement of Muhammad Rafi. M.H.C. (P.W.2) who clearly stated that the S.I. had brought Mushtaq accused to the police station on 22-3-1984. Although normally such statements made by formal police witnesses are considered as favourable concessions granted by them, but in the circumstances of this case, the statement of M . H . C . cannot be considered a mere concession. It is in corroboration of the statement made by the appellant. For the reasons enumerated above, the evidence of the opinion of the Ballistic Expert has to be discarded and set at naught.

14. The inquest report prepared by the S.I. contains the information of only one shot having been fired at the deceased. This fact, apart from contradicting the medical evidence, also lends support to the argument advanced by the learned counsel for the appellant, that the F.I.R. was not recorded at the police station, as stated by the prosecution; and instead was recorded at the spot, after receipt of the post-mortem report. If the F.I.R. had been recorded by the time the inquest report was prepared, the S.I. could not have failed to record that after the firing of first shot, the deceased had fallen and the appellant had thereafter fired two more shots on exhortation by his co-accused. The admission by P.W.9 of the police having obtained thumb-impression of Syed Talib Hussain at the spot after recording the statement also lends support to this view.

15. The only evidence left to be considered is, the ocular account deposed to, by Syed Talib Hussain and Ghulam Hussain. Syed Talib Hussain is father of the deceased while Ghulam Hussain is first cousin of the deceased. Admittedly, the relations of the appellant with the complainant were not normal. In fact, they were strained. The daughter of the complainant was sitting in his house since about four years. The effort to obtain a decree for dissolution of her marriage, even through Court had not succeeded. The dream of the complainant of remarriage for the purposes of getting a male issue had also fallen short because of non-cooperation of the father of the appellant, who refused to marry his daughter Mst. Zakia Bibi with the complainant. He was naturally disappointed and a dejected person because of the conduct of the appellant's brother and father. He is thus, a witness, who is not only related and interested but is also inimical. Ghulam Hussain, the other eye-witness, who has been produced for corroboration of the testimony of Syed Talib Hussain complainant, did not belong to the village of occurrence. His claim that he had taken up residence in the house of the complainant a month prior to the occurrence remains unsubstantiated. The S.I. clearly stated that when he reached the spot, he saw the dead body lying on the cot. The categorical statement made by this witness, is that the dead body was not placed on the cot before the arrival of the police, lends support to the argument of the learned counsel for the appellant that he was not present at the spot and was called later to appear as a witness. In view of the clear statement of the S.I. that on arrival at the spot he found the dead body lying on a cot. If this witness had been at the spot, and even if he had not placed the dead body on the cot, he could not have missed to note that the dead body was lying on the cot when the S.I. had arrived there. The perusal of the statements of these witnesses in conjunction with the other material on record, does not inspire confidence. Their testimonies are of a doubtful character.

16. In the circumstances, genuine doubts appear of the appellant having committed the murder. His appeal is, therefore, accepted and he is acquitted by way of grant of benefit of doubt.

17. Since the conviction of the appellant has been set aside, the question of enhancement of sentence does not arise. Therefore, the) revision petition (Cr. R. No. 398/85) stands dismissed. S. G. D. Appeal allowed.