2010 PLP 1830 (MLD)

MUHAMMAD KHALID ALVI, J.

Through this single judgment, I propose, to decide Criminal Appeal No. 104 of 1994 against conviction and sentence awarded to the appellant Ghulam Muhammad and Criminal Revision No. 4 of 1995 for enhancement of his sentence from life imprisonment to death.

2. Appellant Ghulam Muhammad along with co-accused Wazir Ahmad (his real maternal uncle) faced trial in case F.I.R. No. 37 (Exh.PA) recorded at Police Station Zahir Pir by Muhammad Yaqoob, Inspector/S.H.O. P.W.7 at 6-00 a.m. on 2-2-1991 on the statement of Allah Bukhsh P.W. brother of Khuda Bukhsh deceased that on the preceding night at Isha prayer time, he along with his brother Khuda Bukhsh deceased, Amir Bukhsh and Ahmad Bukhsh PWs. came to the tubewell of Haji Muhammad Makki. When they reached near Minchin Band, Ghulam Muhammad appellant armed with .12 bore gun along with Wazir Ahmad, his co-accused emerged there. Both raised lalkara to Khuda Bukhsh that they would teach a lesson to him for marrying Mst. Sakeena Mai mother of appellant. The appellant fired a shot with his gun hitting Khuda Bukhsh on the right side of his chest who fell down on the ground and died at the spot. The complainant along with witnesses tried to apprehend them but appellant while firing in the air fled away from the spot along with his co-accused. Hence the present F.I.R.

3. At the trial prosecution examined nine witnesses in all, however one of the eye-witnesses namely Ahmad Bukhsh brother of the deceased was given up. Allah Bukhsh P.W.1 and Amir Bukhsh P.W.2 are the two eye-witnesses. Both are real brothers of the deceased. They also stated with regard to the motive, identification of the dead-body and all the recoveries i.e. blood-stained earth through Memo. Exh. PB, empties P1 and P2 through Memo. Exh. PC from the place of occurrence and last worn clothes P-3 to P-6' through Memo. Exh. PD. They also witnessed the recovery of Gun P7 on 28-2-1991 from appellant Ghulam Ahmad through Memo. Exh. PE. The gun also contained two live cartridges P8 and P9.

4. P.W.3 Naveed Ahmad F.C. No. 304 is the witness who carried the empties on 26-2-1991 and gun on 19-3-1991 to the Forensic Science Laboratory P.W.4 is Doctor. P.W.4. Muhammad Rafi who conducted the post-mortem examination on 2-2-1991 at 2-00 p.m. and submitted his report Exh. PG. P. W.5 is formal witness. P.W.6 Nazir Ahmad H.C. No. 460 stated that blood-stained earth and crime empties were deposited with him on 4-2-1991. P.W.7 Muhammad Yaqoob, Inspector/S. H.O is the P. W.8 Fateh Muhammad, S. H.O. formally submitted the report under section 173, Cr.P.C. after receiving the report of Chemical Examiner. Likewise P.W.9 Shahbaz Khan Inspector submitted his report under section 173, Cr.P.C. after receiving the report of Forensic Science Laboratory. He also recorded statement under section 161, Cr.P.C. of P.W.3 and P.W.6 on 19-5-1992. Report of the Chemical Examiner was tendered in evidence as Exh. PL and that of Serologist Exh. PM and Forensic Science Laboratory is Exh. PN.

5. During his examination under section 342, Cr.P.C., appellant denied the prosecution story and claimed that he has been falsely involved in the case. He however neither led any defence evidence nor opted to appear as his own witness under section 340(2), Cr.P.C.

6. The learned trial Court vide judgment dated 27-10-1994 acquitted co-accused Wazir Ahmad. The appellant was however convicted under section 302, P.P.C. and sentenced to life imprisonment as Ta'zir. He was also held liable to pay an amount of Rs.25,000 as compensation to the legal heirs of deceased Khuda Bukhsh. In default of payment, he was to further undergo' R.I. for six months. This conviction and sentence is being assailed through the instant appeal while on the other hand the complainant has also filed Criminal Revision No. 4 of 1995 for the enhancement of his sentence.

7. Learned counsel for the appellant contends that the motive was disbelieved by the learned trial Court; that report of the Forensic Science Laboratory Exh. PN was also not believed. To fortify his arguments, it is contended that empties were recovered on 2-2-1991 they were deposited in the Malkhana on 4-2-1991 and were sent to the Forensic Science Laboratory on 25-2-1991. Likewise the gun was recovered on 28-2-1991 and was sent to the Laboratory on 19-3-1991. Delay in these circumstances has caused serious doubts about the safe custody of the articles. It is also submitted that P.W.7, I.O. did not record the statements of P.W.3 and P.W.6 under section 161, Cr.P.C. which were later on recorded by P.W.9 on 19-4-1992 after a period of more than one year, therefore, the sanctity attached to this report in the absence of positive evidence of safe custody of the articles becomes doubtful. It is next contended that according to the site plan Exh. PK, P.W. 1 and P.W.2 were on the southern side of the place of occurrence while according to the statements of P.W. and P.W.2, they were proceeding from East to West which fact is negated by P.W.7 I.O. It is also submitted that according to the statements of P.W. and P.W.2, it was a deserted place and there was no source of light' and the time of occurrence as disclosed in the F.I.R. was Ishawela. It is further, submitted that eye-witnesses stated the distance of fire to be 14 to 20 feet while according to the medico-legal report and the statements of P.W.4, the distance of fire was within six feet as the injury was having burning and blackening around it. It is also submitted that no source of identification has been disclosed by the eye-witnesses. It is further submitted that pellets recovered from the dead-body were not sent to the Forensic Science Laboratory for their cross-match either with the empties recovered or with the crime weapon. It is next submitted that there is an inordinate delay in the registration of the case. It is further argued that according to the F.I.R., the complainant on account of late night and non-availability of transport could not proceed to the police station for the registration of F.I.R. and approached the police station in the morning. While according to his statement as P.W. he proceeded towards the Police Station just one hour after the occurrence. To conclude his arguments, it is submitted that it was an unseen occurrence having taken place in a deserted place, the dead-body remained lying at the spot throughout the night, when in the morning it was detected, the instant case was got registered against the appellant on account of personal grievances.

8. On the other hand, learned Additional Prosecutor-General assisted by the learned counsel for the complainant contends that P.W. has explained the manner in which the appellant and his co-accused were identified i.e. it was dusk-time and the visibility has not dropped to the extent that the appellant could not be identified. It is further submitted that since the appellant and his co-accused were known persons to the P.Ws. therefore when they raised lalkaras they were identified by their voice as well.

9. I have considered the arguments of the learned counsel for the parties.

10. According to the site plan Exh. PK, the eye-witnesses were at point No. 4 and deceased was at point No. 2 while the accused were at point No.

3. Both the points Nos. 2 and 3 are towards North from the witnesses P.W.7 the I.O. also stated that the position of all were so disclosed before him during investigation. However P.W.1 and 2 categorically stated in their statements that they were proceeding from East towards West at the time of occurrence. Had they been moving from East to West, it was simply not possible for the deceased to have proceeded towards the place of occurrence which falls on the northern side. The distance of fire given by the Doctor P.W.4 is within six 'feet while according to the eye-witnesses it was between 14 to 20 feet. Admittedly the time of occurrence mentioned by the complainant in the F.I.R. is Ishawela which starts roughly about 1-1/4 to 1-1/2 hour after Maghrib time. By that time, the night becomes quite dark so as to make the identification difficult from a distance of 20 Karams. It is an admitted position that place of occurrence was a deserted place having no source of light. The complainant in the F.I.R. categorically stated that since it was late night and no transport was available to him, therefore, the matter could not be reported by him with the police therefore he approached the police at 6-00 a. m. in the morning. However while appearing as P. W.1, he admitted that about one hour after the occurrence he has proceeded to the police station. Certainly he did not proceed to the police station when transport was not available, meaning thereby that transport was available to the complainant when he proceeded. The distance from the place of occurrence to the police station is 26 k.m. that could not take more than an hour's time to reach the police station. The rest of the delay in the registration of the case goes unexplained.

11. For what has been stated above, there are serious deficiencies and doubts in the ocular evidence provided by P.W.1 and P.W.2.

12. There was one strong evidence against the accused i.e. report of the Forensic Science Laboratory Exh. PN which establishes that the empties recovered from the place of occurrence were cross-matched with gun recovered from the appellant. If this piece of evidence is believed then the appellant has no case but certain serious flaws have been pointed out by the learned counsel for the appellant with regard to this evidence. The empties were recovered on 2-2-1991 and were deposited in the Malkhana on 4-2-1991 without any explanation. The Investigating Officer who recovered the empties also did not record the statement under section 161, Cr.P.C. of Moharrar and the Constable P.W.3 and P.W.6, with regard to the keeping of said empties in safe custody. Likewise their statement with regard to keeping of gun Exh. P7 was also not recorded by the I.O. Their statements under section 161, Cr.P.C. were recorded by P.W.9 after more than a year. It is also noted that in column No. 23 of Exh. P1 the inquest report does not contain that anything was recovered from near around the dead-body while according to the prosecution case the empties were recovered from near the dead-body. This also casts doubt on the prosecution story with regard to this piece of evidence. Once this evidence is also discarded, the prosecution has no other convincing evidence to sustain the conviction and sentence.

13. For what has been stated above, this appeal is allowed, conviction and sentence awarded to the appellant by the learned trial Court vide judgment dated 27-10-1994 is set aside. Resultantly the appellant is acquitted of the charge. He is on bail, his bail bond shall stand discharged for the same reasons, Criminal Revision No. 4 of 1995 is dismissed. H.B.T./G-50/L Appeal allowed.