1994 P Cr (PLP)

6. Ocular account was deposed to by Ghulam Rasool (P.W.3) and Ashiq Hussain (P.WA). Nazar Muhammad was given up as unnecessary. Ghulam Rasool, after repeating the facts given by him, about the actual occurrence, made some improvements while deposing about the motive for the occurrence. In that, he stated that Muhammad Nawaz had abducted his daughter 10/11 years prior to the occurrence and that they had got recovered the girl ten months after the occurrence. He added that she was murdered later on, and Muhammad Nawaz had got a case registered against him, Muhammad Hussain (deceased) and two others, but they were acquitted. He also added that the deceased was his brother and Ashiq P.W. was son of his sister. During cross‑examination, he denied the fact that he had got recorded in the F.I.R. that Mst. Saleema Bibi was abducted a year prior to the occurrence. He denied the suggestion that Mst. Saleema had married Muhammad Nawaz after making a statement before the Magistrate at Gujrat that he (P.W.3) wanted to marry her forcibly with one Muhammad Abbas and that she married Muhammad Nawaz of her own free‑will. He admitted that Mst. Saleema Bibi was murdered one month after her recovery. He also admitted that Muhammad Nawaz had got the case of murder of Mst. Saleema, registered against him, his brother and other accused, after obtaining a direction from the High Court, through a writ. He denied the suggestion that the deceased was a bad character and had been challaned under Goondas Ordinance. He stated that village Abadi was at a distance of one Bigha from the place of occurrence. He expressed ignorance about the appellant having been declared innocent during investigation. While admitting that three fire‑shots were heard at the time of occurrence, he declared that he had not seen any empty at the spot. He denied the suggestion that he had lodged a false case due to the enmity arising from the abduction and murder of his daughter.

7. Ashiq Hussain (P.W.4) while corroborating the statement made by P.W.3 vis‑a‑vis the actual occurrence, added that the accused other than the appellant had fired at them but they had saved themselves by lying down in the paddy crop. He admitted that he used to reside in the same Haveli with the complainant. According to him, some other persons of the village had also witnessed the occurrence. He admitted that the police after recording their statements had also recorded the statements of the villagers, who had gathered at the spot. He denied the suggestion that the persons collected at the spot had belied their version. While denying the suggestion that he had not witnessed the occurrence and had made a false statement due to the enmity with the accused, he also denied the suggestion that the police had declared the appellant innocent.

8. Nazir Ahmad S.H.O., who had registered the case, visited the spot, despatched the dead body for post‑mortem, collected blood‑stained earth from the spot, and recorded statements under section 161, Cr.P.C., appeared as P.W.9 and deposed those facts. During cross‑examination, he stated that it had not come to his notice during investigation that the lands of Nazar Muhammad and Ashiq P.Ws. were not near the place of occurrence. He admitted that he had not found any empties or pellets near about the dead body.

9. Syed Muhammad Baqir, who had arrested the appellant and the acquitted accused and submitted challan to Court after taking into possession gun P.1, alleged to have been got recovered by the appellant, and carbines, got recovered by the accused, appeared as P.W.5, and gave the details of the investigation done by him. During cross‑examination, he denied the suggestion that nothing had been recovered from the appellant and the other accused and that he had planted the weapons to strengthen the prosecution case. He admitted that neither he had searched the houses of the accused nor had obtained their warrants before they were hauled up.

10. Allah Ditta, who had witnessed the recovery of gun at the pointing out of the appellant and carbines at the instances of the acquitted accused, appeared as P.W.2 and deposed those facts. During cross‑examination, he stated that the village Abadi comprised of 7,000/8,000 persons. He stated that there were four Lumberdars and three Councillors from his village. He denied the suggestion that no recoveries had been effected from any of the accused in his presence and that he had made a false statement due to the enmity with the accused and relationship with the complainant party. The statements of the remaining witnesses are more or less of a formal nature.

11. The appellant as well as the acquitted accused during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. They all denied to have led to the recovery of any weapon. While answering the question about the abduction of Mst. Saleem Bibi, daughter of the complainant, her murder, and trial of the complainant, deceased and others for her murder, he stated as follows:‑‑ "Mst. Saleem Bibi daughter of Ghulam Rasul P.W. had come to me of her own and married with me voluntarily. When she visited the house of Ghulam Rasul P.W. after her marriage with me, she was murdered whereupon I got a case registered against Ghulam Rasul P.W., Muhammad Hussain deceased and two others. They were, however, acquitted as a result of a compromise." and took up the plea of innocence. He examined in defence Ghulam Muhammad Kalyar, D.S.P., as D.W.1. Ghulam Muhammad Kalyar declared on oath that according to his investigation, Muhammad Nawaz was not present at the spot at the time of occurrence, and he had not participated in the occurrence. He, however, added that the deceased had been murdered at his behest. Neither the appellant nor the acquitted accused made 'statements on oath under section 340(2), Cr.P.C.

12. We have gone through the evidence with the assistance of the learned counsel for the appellant and considered the contentions raised by the learned counsel for the parties.

13. There is no denying the fact that the relations between the complainant and the appellant were not only strained but inimical, too, due to the abduction of Mst. Saleem Bibi by the appellant, her murder after return, and trial of the complainant, deceased and two others for that. The deceased was real brother of the complainant and brother of the mother of Ashiq Hussain (P.W.4), the only, other witness, who deposed the ocular account of the occurrence. The eye‑witnesses, thus, were not only related to the deceased closely but were inimical, too.

14. The occurrence had taken place at a distance of one Bigha from the village Abadi. P.W.4 admitted during cross‑examination that the occurrence had been witnessed by some other villagers also apart from them. The complainant had neither named them as eye‑witnesses, nor anyone of them was examined at the trial. The said witness also admitted that those persons had appeared before the 1.0. at the spot and made statements. In the circumstances, the argument of the learned counsel for the appellant that the complainant had purposely withheld the names of independent persons, so that they are not examined at the trial, appears to possess substance.

15. None of the witnesses stated that the deceased was fired at from a close range. Nonetheless, the medical evidence deposed to by the doctor, who had performed autopsy, makes it clear that the deceased was fired from a very close range. In fact, the doctor stated during cross‑examination that the shot might have been fired at, from one or 1‑1/2 feet. The medical evidence, thus, in a way lacks the potentials of corroborating the ocular account. Although both the eye‑witnesses stated specifically that the co‑accused of the appellant had also fired in the air and all the accused while returning had also resorted to firing, yet no empty was found at the spot. Not only the empties were not found lying at the spot when the police reached there, the complainant and the other P.Ws. had also not noted any empty lying at the spot before the complainant had proceeded to the police station. The narration of the occurrence given by the two P.Ws. thus lacks inspiration on that account also.

16. Although a gun was said to have been recovered at the instance of the appellant, yet even if that evidence is believed, which otherwise appears to be shaky, it is incapable of lending corroboration to the ocular account as no empty was recovered from the spot to see whether the gun recovered from the appellant matched with that. There is, thus, no evidence on record which could lend corroboration to the interested and inimical ocular account. On the other hand, there is evidence on record that a Gazetted Officer, who had investigated the case under the orders of the I.-G., had not found the allegation levelled against the appellant of having fired a fatal shot at the deceased to be correct. In the circumstances, grave doubts have arisen in our minds about the correctness and truthfulness of the prosecution case against the appellant. His appeal is, therefore, allowed and he is acquitted. He shall be set free forthwith, if not required in any other case. Sentence of death NOT confirmed. N.H.Q./M‑960/L Appeal allowed.