1993 P Cr (PLP)

(2) A fire-arm wound 18 c.m. x 8 c.m. bone deep at the forearm extending from wrist joint upto ten c.m. away from the elbow joint. Margin black. (3) A fire-arm wound 1/2 c.m. at the arm, 8 c.m. below the shoulder joint margin black. (4) A fire-arm wound 2 c.m. circular on the right 6th intercostal space, 3 c.m. away from the sternum margins black. (5) A circular wound 1/4 c.m. circular at the right 7th intercostal space, 3 c.m. below the injury No.4 in the same line. (6) A circular wound 1/4 c.m. circular at the 8th intercostal space. (7) A circular fire-arm wound 1/2 c.m. circular 4 c.m. from the mid line on the right side 10 c.m. from the shoulder. (8) A fire-arm Wound 1/2 c.m. circular, 3 c.m. below injury No.7. (9) A fire-arm wound 1/2 c.m. circular, 3 c.m. below injury No.8. (10) A fire-arm wound 2 c.m. circular, 3 c.m. from the mid line on the right side at the level of 9th intercostal space.

3. On opening the abdomen the stomach of the deceased was full of semi-digested food. Injuries Nos.l and 3 were opined simple while the rest were fatal. Time between the injuries and death was immediate and death and post-mortem within 12 to 24 hours.

4. Ghulam Akbar and Ghulam Asghar are real brothers whereas Rab Nawaz and Gulbaz are closely related to them. Rab Nawaz and Gulbaz had produced their licensed guns and their licences before police. Two pellets collected by the Investigating Officer were sent alongwith the guns to Forensic Science Laboratory. Report Exh.P.U. is in .negative. All the accused persons denied their presence at the spot or having committed the offence. They took up the plea that they had been falsely involved in the case on account of long standing enmity between them and the complainant party. Some documents were produced in defence as well as two witnesses. Khizar Hayat (D.W:1) deposed that Muhammad Aslam (P.W.8) or his father does not own any land in village Daiwal, nor are they tenants or lessees of anyone in the village. Ghulam Ding Head Constable (D.W.2) brought register of F.I.Rs. to verify previous litigation between the parties.

5. Learned counsel for the appellants, after taking me through relevant evidence of the relevant witnesses, attacked the prosecution version on various premises. The first item of evidence that comes foremost to mind-is inordinate delay in F.I.R. There is delay of fourteen hours; the occurrence took place on the 28th of October, 1986, at 5-30 p.m. whereas the F.I.R. was lodged with the police the next day on 7-25 a.m. The village Daiwal is connected by metalled road to the Police Station Katha Saghral at a distance of six miles. P.W.2 Haji Azam, a relative of the deceased, is admitted to be owner of a car. There is no explanation forthcoming as to why the eye-witnesses or the complainant did not request Haji Azam to take them to police station for informing diem bout the incident, especially when there is nothing to militate against cordial relations between Haji Azam and the above P.Ws. The F.I.R. was also recorded after preliminary investigation as is evident from inquest report Exh.P.K. which does not mention the number of F.I.R. Again; it is admitted fact that the parties had deep-rooted enmity and seen in this background, the F.I.R. after preliminary investigation raises initial doubts about the entire prosecution case.

6. The complainant in this case had not witnessed the occurrence. He had only spoken about the motive and the fact that eye-witnesses had informed him about the incident which had subsequently been passed on to police next morning. Thus, the complainant had derived knowledge about the incident. Even his conduct about information to police is highly objectionable. He spent the night at the Dera and only next day went to the police station. The eye witnesses have also admitted that after the incident they sat the spot for about couple of hours and only then left the place to inform the complainant about the incident. No relative of the deceased in the village made attempt to inform the police. This gives rise to a question as to if the eye-witnesses had really witnessed the crime and criminals. Is there not a possibility that the eye-witnesses had reached the place of occurrence long after the incident and since they had no knowledge about the offenders, therefore, they and other relatives of the deceased spent the night deliberating and guessing who the assailants could be and on the basis of surmises next morning decided to lodge the F.I.R. by nominating the appellants who were admittedly their old enemies. The ocular account does not inspire confidence. Both Aslam and Fateh Ali claim to accompany the deceased at the time of incident. The deceased admittedly was carrying sugar, eatables, etc. for Qur'an Khawani, on a cycle. It is really strange that the deceased was going on foot carrying a cycle in his hand with load. Then, had the witnesses been present with the deceased, the appellants, four in number and all carrying .12 bore guns, also must have attacked them in view of enmity with them as well. Ignoring it, there is no explanation for the witnesses to waste a couple of hours over the spot after the occurrence. They had displayed conduct which is not in conformity with normal course of human conduct. At once, about the incident they ought to have informed the police or the relations of the deceased or other inhabitants of the village. The appellants had already left the place and there was no check on their movement. Assuming for arguments sake that the witnesses were present on the spot, they have admitted that there were bushes and Keeker trees near the place of occurrence. The time was 5-30 p.m., that is about fifteen minutes after the sunset (sunset time on 29th day of October is 5-19 p.m.). Possibility is there that the deceased suddenly received fire-shots before the witnesses could identify the assailants. In fact, the circumstances suggest that the occurrence had taken place long after sunset. This brings me on discussion about conflict between ocular account and medical evidence.

7. The doctor .had found semi-digested food in the stomach of the deceased and according to him the last meal had been taken by the deceased 2-1/2 - 3 hours before his death. In villages the evening meal is taken immediately after Maghrib prayer. The time of meal by the deceased, therefore, would be about 8-00 p.m. (5-19 p.m. + 2-1/2 / 3 hours). This inference leads to the fact that the murder had taken place in dark and was either unwitnessed or if witnessed, the assailants could not be identified and pinpointed.

8. Besides medical evidence, the ocular account comprising interested witnesses does not receive corroboration from recoveries as well. Two pellets recovered from the spot and the two licensed guns produced by Rab Nawaz and Gulbaz appellants were not found to be wedded to each other vide report Exh.P.U. of Forensic Science Laboratory. No recovery was effected from Ghulam Asghar and Ghulam Akbar.

9. To sum up, the ocular account by interested witnesses is not confidence inspiring and also does not receive corroboration from medical evidence. Recoveries are inconsequential. Motive is there but it could also prompt the complainant party to falsely involve their old enemies, the E appellants. In the circumstances, it is difficult to uphold the impugned conviction and sentences. I, therefore, giving benefit of doubt to all the appellants, set aside the impugned judgment, conviction and sentences. The appellants are on bail. Their bail bonds are discharged. The guns be returned to the licensees. The Revision Petition (No. 436 of 1988) for enhancement of sentences of the appellants stands dismissed. N.H.Q./R-60/L Appeal accepted.