2006 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Muhammad Arif, along with his brothers Shaukat Hussain, Adil Hussain and father Muhammad Hussain was tried by the learned Sessions Judge, Sialkot, in lieu of case F.I.R. No.588 registered at Police Station Uggoki on 11-10-1997 for offences under section 302/34, P.P.C. for having committed the murder of Muhammad Riaz. Vide judgment, dated 28-3-2000, the learned trial Judge, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. and sentenced him to death plus payment of Rs.50,000 as compensation, to the legal heirs of the deceased, in default in payment whereof to undergo S.I. for six months.

2. Aggrieved by his above noted conviction and sentence, Muhammad Arif appellant has brought the instant appeal, while Mushtaq Ahmad/complainant has filed Criminal Appeal No.611 of 2000, questioning the legality of acquittal of Shaukat Hussain, Adil Hussain and Muhammad Hussain/respondents Nos.l to 3, whereas the learned trial Court has made a reference bearing Murder Reference No.277 of 2000 seeking confirmation or otherwise of death sentence imposed upon Muhammad Arif. All these matters are being decided through this consolidated judgment.

3. The brief facts of the case per statement/complaint (Exh.P.F.), which based the registration of formal F.I.R. (Exh.P.F./1), are that on 10-10-1997 Mushtaq Ahmad, complainant/P.W.6, and his brother Muhammad Riaz went to Rana Muhammad Naeem in his market. At about 11-15 p.m., the complainant, his brother Muhammad Riaz (deceased) and Rana Muhammad Naeem/P.W.7, along with Kashif and Muhammad Sabir, who both were riding on motorcycle on slow speed, were going to their respective houses and when they reached near Masjid Syedan where electric light was on, all of a sudden Muhammad Arif/appellant armed with pistol, Shaukat, Adil (both empty-handed) and Muhammad Hussain armed with rifle emerged from the corner of the house of Muhammad Akram Machhi and were identified in the light of the electric bulb. Shaukat and Adil (acquitted accused) raised Lalkara that Muhammad Naeem be killed and taught a lesson for firing at Muhammad Arif, whereupon Muhammad Arif and Muhammad Hussain started firing from their respective weapons. One of the fires hit Muhammad Riaz on the backside of his head, in view whereof he fell down, while the P.Ws. remained unhurt. The accused decamped from the scene of occurrence while firing. The P. Ws. were taking Muhammad Riaz in injured condition to the hospital in a car, when on the way Muhammad Riaz died. The motive as alleged in the F.I.R. was that on 8-10-1997 a quarrel took place between Muhammad Naeem and Muhammad Arif. Muhammad Arif had got a case registered in that regard against Muhammad Naeem and the accused with a view to take the life of Muhammad Naeem fired and the fire hit Muhammad Riaz, which resulted into his death.

4. On 11-10-1997, Muhammad Sarwar, S.-1./P.W.11, on receipt of information about the occurrence, went to Civil Hospital, Sialkot, where he recorded the statement of MushtaqAhmad/complainant (Exh.P.F.), which was sent to the police station where formal F.I.R. (Exh.P.F./1) was registered. Then he prepared injury statement Exh.P.J. and inquest report Exh.P.K. of the deceased and sent the dead body for post-mortem examination. Thereafter, he went to the place of occurrence. On spot inspection, he collected blood-stained earth from the spot and sealed the same into parcel vide memo. Exh. P. E. He took into possession two pellets P.3 and P.4 through memo. Exh. P. D. and also prepared rough site plan of the place of occurrence without scale (Exh.P.M.). After post-mortem examination, he took into possession the last-worn clothes of the deceased, i.e. blood-stained shirt P.1 and Lacha P.2 along with a sealed bottle containing pellet/bullet lead, through memo. Exh.P.C. Shaukat Hussain and Adil, accused, were arrested on 15-10-1997. On 30-3-1998, Muhammad Arif appellant, was arrested and on 2-4-1998, while in custody, Muhammad Arif led to the recovery of .30 bore pistol P.5, along with its licence, which was taken into possession vide memo. Exh.P.H. After completion of investigation, the accused were challaned to face the trial.

5. To substantiate its version at the trial, the prosecution examined eleven witnesses, Ocular account was furnished by Mushtaq Ahmad/ P.W.6 and Rana Naeem/P.W.7. They also stated about the motive. Muhammad Sarwar, S.-I./P.W.11, stated about the drafting and sending of complaint/statement of Mushtaq Ahmad/complainant to the police ' station and investigation of the case thereafter. Waqar Javed, Inspector/ P.W.9, stated about the partial investigation of the case. He also stated about the recovery of crime weapon at the instance of the appellant. Akhtar Naqqash, Draftsman/P.W.8 prepared site plan Exh.P.G. at the pointation of the P.Ws. Dr. Fiaz Ahmad/P. W.1, who conducted post-mortem examination on the dead body of the deceased, while observing five injuries on his person,. opined that injuries Nos.2 to 5 were caused by a blunt weapon and were simple in nature, while injury No.l was caused by a fire-arm weapon and was dangerous in nature, which caused damage to vital centres of brain and was sufficient to cause death in ordinary course of nature. The rest of the evidence was formal in nature and need not be discussed. After tendering in evidence the report of Chemical Examiner Exh.P.N., Serologist Exh.P.O. and Forensic Science Laboratory Exh.P.P., the prosecution closed its side. Thereafter, in their statements recorded under section 342, Cr.P.C., all the accused pleaded their innocence and false implication due to enmity. None of the accused appeared as his own witness under section 340(2), Cr.P.C. nor did they produce any witness in their defence. However, Muhammad Arif/appellant produced documents Exh.D.B. to Exh.D.H. in his defence.

6. Learned counsel for the appellant submit that whole family of the appellant was initially involved in this case; that eye-witnesses have made dishonest improvements in their statements recorded during trial; that in F.I.R., the injury was not attributed either to Muhammad Hussain or to Muhammad Arif, which shows their dishonesty; that according to prosecution case, Arif appellant had a pistol, while Muhammad Hussain had a rifle; the bore of the pistol was not specified in the F.I.R.; however, during investigation, it was observed that pellets had hit shutters of the nearby shop and one pellet was recovered from inside the body of the deceased and thereafter the eye-witnesses dishonestly attributed that injury to the appellant; that hostility and enmity' existed between the parties, thus, the statements of the eye-witnesses could only be relied when they were corroborated by some strong reliable independent evidence, which was lacking in this case. Both the learned counsel have prayed for acquittal of the appellant. The learned counsel appearing on behalf of the State has frankly conceded that the case of the prosecution was not free from doubts.

7. We have heard the learned counsel for the parties and have also scanned the entire record.

8. It is night time occurrence at a place which is away from the houses of the deceased and the witnesses. Undeniably, hostility existed between the complainant party and the appellant prior to the occurrence. According to prosecution case, Mushtaq Ahmad brother of the deceased and Rana Naeem P.W.7 were going back to their houses along with Muhammad Riaz when they were surprised by the appellant, his father and two brothers. According to F.I.R., Muhammad Hussain father of the appellant was equipped with a rifle, while appellant was armed with a pistol; after raising Lalkara that Muhammad Naeem (P.W.7) be murdered, Muhammad Arif and Muhammad Hussain started firing with their weapons and one of the fires hit Muhammad Riaz on the back of his head. The fire was not attributed specifically either to the appellant or to Muhammad Hussain but during trial Mushtaq Ahmad made dishonest improvement by attributing the fatal shot to Muhammad Arif; similarly Rana Naeem also attributed the fatal shot to Arif. According to site plan Exh.P.G. which was prepared at the instance of the eye-witnesses, the fire was caused from a distance of sixty feet, while according to post-mortem examination report, blackening was present around the wound which was caused by fire-arm, which means that injury was Caused from a very close range and not from a distance of sixty feet. It is also pertinent to note that according to FIR., Muhammad Riaz deceased received a single fire-arm injury, while according to post-mortem examination report, the deceased received five injuries. Injury No. l was caused by fire-arm, whereas the remaining injuries were caused by blunt weapon. Muhammad Sarwar, who had investigated the case, admitted that shot marks on the shutter of the shop of Muhammad Ramzan were present and pellets were recovered from the said shop. The above noted facts make it manifest that .12 bore weapon was also used during the occurrence, who used it was not known to the eye-witnesses at all.

9. As far as motive is concerned, according to F.I.R., the accused had enmity with Naeem, who had earlier fired at Muhammad Arif, and the accused raised Lalkara that Muhammad Naeem should be murdered for firing at Muhammad Arif appellant but Naeem did not receive any injury. Had Naeem- been there, he would not have escaped injury. It appears that it was an unwitnessed occurrence and as there was background of hostility and enmity between the complainant party and the appellant, a case was got registered against the father, two brothers and the appellant.

10. As far as recovery is concerned, on 14-4-1998, after more than six months of the occurrence, the licensed pistol of the appellant was alleged to have been recovered, which according to report of Forensic Science Laboratory, was in working order. This recovery cannot be used against the appellant, as no empty of .30 bore pistol was recovered from the spot, rather according to Exh.P.D., two pellets of 12 bore were recovered from the scene of occurrence. As direct D evidence has been disbelieved, conviction cannot be recorded on the basis of abscondence alone. The case of prosecution is replete with doubts. Hence, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case. The death sentence in not confirmed. The Murder Reference is answered in the negative.

11. For the reasons noted above, we find no merit in Criminal Appeal No.611 of 2000 filed against the acquitted accused and the same is dismissed. H.B.T./M-187/L????????????????????????????????????????????????????????????????????????????????? Appeal allowed.