1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No.563 of 1986 and connected Criminal Revision No.204 of 1987 filed by Ali Muhammad complainant against acquittal, arise from the judgment of learned Additional Sessions Judge, Gujranwala, whereby, he on 23‑9‑1986 acquitting Ata Ullah (38), convicted Muhammad Yaqoob appellant under section 302, P.P.C. for the murder of Nazir Ahmad and sentenced him to imprisonment for life and a fine of Rs.5000 in default thereof six months R.I. with the direction that the fine if realized, half of it, be paid to the legal heirs of the deceased.

2. The occurrence took place on 27‑6‑1983 at about 8‑00 a.m. in the area of village Chehal Kalan at a distance of 3 miles from Police Station Qila Didar Singh. F.I.R. Exh.P.J. was lodged by Ali Muhammad P.W.10 brother of the deceased on the same day at 9‑15 a.m. and was recorded by Mian Khan S.H.O. P.W. 12.

3. The motive allegedly was that Ali Muhammad complainant had taken 40 acres of land on lease from Ghulam Muhammad, in village Qila Jhandha Singh. Ata Ullah acquitted accused wanted to take the same on lease. Two weeks before the occurrence, Ata Ullah and Ali Muhammad complainant had quarrelled over the transaction of the lease and consequently proceedings under section 107/151, Cr.PC. were taken against Ata Ullah accused, his father Din Muhammad and others on one side and Ali Muhammad complainant and others on the other side, hence this occurrence.

4. As for the main occurrence it has been stated that at the eventful time Nazir Ahmad deceased, Ali Muhammad P.W. 10, Muhammad Azam P.W. 11 and Bashir Ahmad (not produced) were proceeding to Kamoke and were at a distance of two killas from village Chehal Kalan when Nazir Ahmad deceased sat to urinate. His companions continued their journey. When they had gone a Killa away, Muhammad Yaqoob armed with carbine and Ata Ullah armed with Chnuri came there. They launched attack. Muhammad Yaqoob fired shot hitting the deceased. Ata Ullah gave Chhurri blow to the deceased on his face. Nazir Ahmad died on the spot, and the accused decamped.

5. On 27‑6‑‑1983, Dr. Anjam Javid P.W. 1 conducted post‑mortem examination on the dead body of Nazir Ahmad and found following injuries on his body:‑ (1) "Incised wound 6 x 1 c.m. x bone deep, right side of chin. (2) Multiple fire‑arm wounds (total four in number) in area of 9 c. m. x 6 c.m. back. and outer side of left upper part each of size 3/4 x 3/4 c.m. x going deep. Burning around the margins was present. (3) Multiple fire‑arm wounds 9 in number, in an area of 11 c.m. x 11 c.m. outer and back of left chest middle part each of size 3/4 x 3/4 c.m. x going deep. Burning around the margin was present. (4) Multiple fire‑arm wounds 3 in number in an area of 7 c.m. x 5 c.m. back of right knee joint, each of the size 3/4 a 3/4 c.m. x going deep. Burning was present around the margins. (5) Fire‑arm wound 3/4 c.m. x 3/4 c.m. x going deep on the back of right leg middle part. Burning was present around the margins. (6) Multiple fire‑arm wounds 4 in number in an area of 8 x 10 c.m. on the back of left leg upper each of the size 3/4 cm x 3/4 c.m. x going deep. Burning was present around the margins." On the dissection of thorax, 6th and 7th ribs were fractured due to injury No.3. Left pleura was injured due to injury No.3. Pericordium and heart were also found injured. 6 pellets were removed from peritonial cavity. In his opinion, the death was due to haemorrhage and shock as a result of injuries Nos.3 and 4 which were sufficient to cause death in the ordinary course of nature. Injury No.1 was caused by sharp‑edged weapon while rest were caused with fire‑arm. The death was immediate and the time between death and post‑mortem was 6 to 12 hours:

6. On 3‑7‑1983 Muhammad Yaqoob appellant was arrested by Mian Khan S.H.O. P.W.

12. At the time of his arrest he was wearing blood‑stained Kurta Exh . P . 7, which was removed and taken into possession vide memo Exh.P.E. attested by Muhammad Akram P.W. 8, Muhammad Aqeel (not produced) and Mian Khan S.H.O. P.W.

12. Ata Ullah was arrested on 4‑7‑1983 by Mian Khan S.H.O. P.W.

12. On 5‑7‑1983 Muhammad Yaqoob appellant led to the recovery of carbine Exh.P.6 from his cattle‑shed which was taken into possession vide memo EXh.P.D. attested by Sana Ullah P.W. 9, Muhammad Abbas (not produced) and Mian Khan S.H.U. P.W.

12. It may be noted that on the day of occurrence, blood‑stained Chhurri Exh.P.9 and 3 crime empties Exh.P.8/1‑3 were lifted from the spot and taken into possession vide memo. Exh.P.G. attested by Bahadur Ali P.W. 9, Muhammad Yar (not produced) and Mian Khan, SI P.W.

12. On the same day Mian Khan took into possession cycle Exh.P.10 from near the place of occurrence vide memo Exh . P.H. attested by the same witnesses. Serologist's report Exh.P.Q. shows that Chhurri Exh.P.9 was stained with human blood, Kurta Exh.P.7 was also stained with human blood. The crime empties Exh.P.8/1‑3 recovered from the spot were fired from carbine recovered from Muhammad Yaqoob appellant as revealed by Forensic Science Laboratory Exh . P.R.

7. To prove its case, prosecution produced 12 witnesses. Ali Muhammad P.W. 10 and Muhammad Azam P.W. 11 have given the ocular account of the occurrence. They claim to have seen Muhammad Yaqoob appellant and Ata Ullah, acquitted accused causing injuries to the deceased by shot fired from carbine and Chhurri respectively Bahadur Ali P‑.W.9 has supported the recoveries of crime empties and blood‑stained Chhurri from the spot. Sana Ullah P.W. 7 and Mian Khan P.W. 12 have supported the recovery of carbine EXh.P.6 from Muhammad Yaqoob appellant. Muhammad Akram P.W.8 stated that blood‑stained Kurta Exh.P.7 was removed from the person of Muhammad Yaqoob appellant on 3‑7‑1983. Dr. Anjam Javid P.W. 1 has proved the post‑mortem examination report of the deceased. Ali Muhammad P.W. 10 and Muhammad Azam P.W. 11 have also deposed about the motive to murder the deceased. The rest of the evidence is more or less of formal nature.

8. When examined 'under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. Ata Ullah raised the plea of alibi to the effect that at the time of occurrence, he was under the treatment of Dr. Fakhar Ali D.W.1. In defence two witnesses were produced. Dr. Fakhar. Ali D.W.1 stated that on 27‑6‑1983 at about 8‑00 a.m. Ata Ullah accused and his father were in Civil Hospital, Nowsehra Virkan, where he was posted as Medical Officer Incharge Civil Hospital and that he had issued certificate Exh . D.D. to this effect on 17‑7‑1983. Khushi Muhammad Lambardar D.W.2 stated that during investigation he was nominated by the parties as 'Salis' on the question of the guilt or innocence of Ata Ullah accused. He made inquiries on oath of Holy Quran in the mosque. As a result of the inquiry made by him, he came to the conclusion that Ata Ullah was innocent. He proved Halafnama Exh.D.F.

9. The learned trial Court was of the view that Muhammad Yaqoob appellant had no motive against the deceased; that recovery of blood stained shirt of Mohammad Yaqoob appellant was doubtful; that recovery of carbine from appellant was of no help to prosecution; that Ata Ullah was not present on spot at the time of occurrence and that participation/guilt of Ata Ullah was doubtful. The trial Court believed ocular evidence to the extent of appellant.

10. Learned counsel for Ata Ullah respondent in Cr.R No. 204/87 supported the judgment of the trial Court. Mr. Shahid Hussain Qadri, the learned counsel for the appellant contended that the prosecution has also failed to prove its case beyond reasonable doubt against appellant; that Ali Muhammad and Muhammad Azam P.Ws. are not dependable; that they had falsely involved Ata Ullah co‑accused whose plea of alibi has been accepted by the trial Court and that there is no corroboration of the statements of the two eye‑witnesses qua the appellant. Learned counsel for the State has supported the judgment of the trial Court.

11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellant and Ata Ullah co‑accused recorded under section 342, Cr.P.C. statements of the defence witnesses and the circumstances appearing in the case. We find that the learned trial Court has rightly accepted the plea of the alibi of Ata Ullah accused. The plea of alibi was raised by Ata Ullah immediately before arrest during investigation. Dr. Fakhar Ali had not only issued certificate with regard to the presence of Ata Ullah in his hospital at the eventful time but had also appeared before the police during investigation and supported the plea of alibi. Dr. Fakhar Ali has also appeared as D.W.1 in support of the plea of alibi. He is an independent person having no inclination towards the accused or animosity against the complainant party. He has successfully faced the test of cross -examination. We do not see any reason to disbelieve him. His evidence cannot be and should not be disbelieved simply because he has appeared as defence witness. Khushi Muhammad Lambardar D.W.2 is also and independent person. He had also appeared before the police during investigation. Mian Khan. S.I., PW 12 has stated that a number of respectables of the locality had appeared before him in proof of the innocence of Ata Ullah. He further stated that Ata Ullah had taken the plea of alibi before him and Din Muhammad father of Ata Ullah had produced certificate of the doctor in support of the plea of, alibi. He stated that he had also verified the medical certificate from the doctor who had owned the same. He stated that Ata Ullah was found innocent during his investigation, which was also verified by the A.S.P. On the application of the complainant, the investigation was then transferred to A.S.P. Hafizabad, who after thorough investigation and on the oath of Khushi Muhammad taken with the consent of the parties, had declared Ate. Ullah to be innocent, Nothing incriminating was recovered from Ata Ullah. There was dispute between him and the complainant party over the lease of the land and as such, the complainant party had a motive to involve him falsely in the case. On our independent assessment, we feel that Ata Ullah was falsely roped in the case although he was not present on the spot at the time of occurrence.

12. This brings us to the case of Muhammad Yaqoob appellant. We find that he had no direct motive against the deceased. Ata Ullah against whom the motive has been alleged by the prosecution has been acquitted by the trial Court; the recovery of blood‑stained shirt from his person after 7th day of the occurrence, seems to be somewhat ridiculous. Carbine and the empties were sent together to Forensic Science Laboratory and as such chances of tampering with the carbine of the empties cannot be excluded. The trial Court has also disbelieved this evidence for good reasons. After the exclusion of the motive and the incriminating recoveries, the ocular evidence of Ali Muhammad and Azam PWs remains in the field. Ali Muhammad is brother of the deceased. Muhammad Azam is also related to the deceased. Their statements have not been acted upon to the extent of Ate. Ullah co‑accused. The trial Court had believed the plea of alibi of Ata Ullah. We have also believed the plea of alibi. We are of the view that Ata Ullah was falsely involved in the case. This finding must damage the integrity and credibility of the two eye‑witnesses. They have been found to be capable of involving innocent person in a murder case. This shows that‑either they were not present on the spot and had not seen the occurrence and if they were present then they have involved an innocent person and have showed reckless disregard of the truth. In this view of the matter, they can be termed as wholly undependable witnesses. In any case rule of prudence would require independent corroboration of their evidence qua the appellant, which is not available in the shape of evidence or circumstances connecting him with the murder of the deceased. For all these reasons, we are of the view that prosecution has hopelessly tailed to prove its case against the appellant beyond reasonable doubt. As a consequence of the above discussion, the appeal filed by Muhammad Yaqoob appellant is accepted and he is acquitted of the charge. He will be released forthwith, if not required to be detained in any other case. The connected revision automatically fails. S.A./M‑762/L Appeal accepted.