2006 PLP 2929 (YLR)

MIAN MUHAMMAD NAJUM -UZ-ZAMAN, J.

Appellant Ghulam Rasool along with eight other co-accused was tried for the murder of Safdar Iqbal in case F.I.R. No.159 of 1995 registered under sections 148/302/149, P.P.C. at Police Station Khuthiala Sheikhan by the Additional Sessions Judge, Mandi Baha-ud-Din, who vide judgment dated 18-7-2002, while acquitting co-accused, convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life as well as to pay compensation amounting to Rs.50,000 to the legal heirs of Safdar Iqbal deceased or in default whereof to further undergo six months' S.I.

2. Calling in question the impugned judgment Ghulam Rasool appellant filed Criminal Appeal No.1496 of 2002 while the complainant has filed Criminal Appeal No.1629 of 2002 and Criminal Revision No.1040 of 2002 against the acquittal of respondents and for enhancement of sentence of Ghulam Rasool' respondents respectively. The appeal against acquittal was admitted to the extent of Tariq Mehmood respondent while to the extent of rest of respondent the same was dismissed. All these matters are being disposed of together by this judgment.

3. Precisely the prosecution story as narrated in F.I.R. lodged by Mansha complainant is that on 25-2-1995 at Degerwela he along with his brother Salehoon, Safdar Iqbal and Mst. Sughran Bibi was on their way to the house of Zafar Iqbal. When they reached near the house of Ghulam Rasool appellant, Asif alias Ahsan, Tariq, Muhammad Rafique, Ghulam Rasool, Muhammad Farooq, Amjad Ali, Yara all armed with .12 bore guns, Ghulam Nabi and Nazir armed with 7 MM rifle emerged there. Muhammad Asif while raising Lalkara that Safdar should not be spared, fired with his gun on the right side of the face of Safdar deceased. Tariq fired which hit Safdar on the backside of his head. Rafique also fired with his gun hitting the deceased on the right shoulder. Ghulam Rasool fired hitting the deceased on his back, Asif fired at the deceased on the back of his head. Thereafter all the accused resorted to indiscriminate firing on the deceased which hit on different parts of his body who fell down and succumbed to the injuries at the spot. The witnesses raised hue and cry whereupon the people from the locality gathered there. The accused decamped from the place of occurrence.

4. After the registration of the case matter was investigated by Ashiq, S.-I. P.W.9 Investigating Officer during the spot inspection along with blood-stained earth also collected two empty cartridges of .12 bore gun P.2/1-2 and two empties of .7 MM P.33/1-2 which were taken in possession vide memo. Exh.PB. He also prepared necessary documents for the post-mortem examination and sent the dead-body to the mortuary, got prepared site-plan through Muhammad Siddique Draftsman (since dead). During his investigation appellant Ghulam Rasool was arrested on 15-3-1995 and on 25-3-1995 appellant allegedly led to the recovery of rifle P.10 which was taken into possession vide recovery memo. Exh.PF. The agency also obtained report from Forensic Science Laboratory qua use of said weapon which is positive in nature. Agency after complying with legal formalities submitted challan before the trial Court where prosecution produced nine witnesses including Muhammad Mansha P.W.2 (complainant) and Mst. Sughran P.W.3, the eye-witness of the occurrence. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. All the accused while denying the charges pleaded innocence. The appellant did not make any statement under section 340(2), Cr.P.C. However, one Aman Ullah Patwari was produced as D.W.1. This witness had prepared site-plan Exh.DA under the orders of the Court. At the conclusion of the trial Muhammad Asif and Muhammad Rafiq co-accused absconded and after complying with legal formalities their perpetual warrants of arrest were issued by the trial Court.

5. Trial Court, after appraisal of evidence available on record, vide judgment dated 18-7-2002 convicted and sentenced the appellants as narrated above.

6. Challenging the legality of the impugned judgment, learned counsel for Ghulam Rasool appellant, submitted that F.I.R. in this case was lodged after consultation and deliberation; medical evidence is in direct conflict with the ocular account; prosecution never proved motive part of its case and that the evidence of recovery relied upon by the prosecution was tailored during the investigation; the entire prosecution case had already been disbelieved qua eight co-accused and the said set of evidence without any independent corroboration cannot be relied upon qua the appellant and in the circumstances trial Court has erroneously convicted and sentenced the appellant.

7. On the contrary, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the arguments advanced by the learned counsel for the appellant. Learned counsel for the complainant further submitted that the data available on record is sufficient to show the involvement of Tariq Mehmood respondent in the commission of this offence but the trial Court has erroneously acquitted him and to that extent the impugned judgment is not sustainable.

8. After hearing the learned counsel for the parties at some length and going through the record of this case, we are of the considered view that trial Court has erroneously convicted and sentenced Ghulam Rasool appellant and he is entitled to get the benefit of doubt on the following reasons: Firstly, according to the F.I.R. at the relevant time appellant was armed with .12 bore gun and had caused injuries to the deceased whereas two of the co-accused of the appellant namely Ghulam Nabi and Nazir Ahmad were armed with .7 MM rifle but before the trial Court both the eye-witnesses while changing the stance stated that at the relevant time appellant and his said co-accused were armed with Pakki Bandook. We have observed that the eye-witnesses are well aware of the difference B between gun and rifle that is why while making statements before the Police they had specifically stated in this regard by saying that appellant and his co-accused were armed with .12 bore gun whereas Ghulam Nabi and Nazir accused had .7 MM rifle. The stand taken up by the eye-witnesses before the Court stands contradicted by the medical evidence. Statedly the fire made by the appellant Ghulam Rasool hit on the back of the deceased but the injuries observed by the doctor on the said part of the body of the deceased were caused with fire made by gun. Doctor also recovered pellets from the said wound i.e. Injury No.4. Secondly, according to the prosecution case appellant Ghulam Rasool along with Asif, Tariq Mehmood and Muhammad Rafiq were standing on the roof top of the house of Ghulam Rasool whereas the rest of the accused were standing in the courtyard of the house and allegedly the firing was made by the appellant from the said roof top. In this regard site-plan c Exh.PL was got prepared by the investigating agency but during the trial under the orders of Court, D.W.1 Aman Ullah Patwari prepared a fresh site-plan Ehx.DA according to which the house of Ghulam Rasool appellant is not near to the place of occurrence and the house of Muhammad Rafiq co-accused of the appellant intervenes the place of occurrence and the house of appellant and it was not possible for the accused to cause injuries C while standing upon the roof top of the house of the appellant. Thirdly, according to the F.I.R. at the relevant time appellant had caused injuries to the deceased with .12 bore gun but during investigation .7 MM rifle was recovered from the appellant. Though the same had matched with the crime empties recovered from the spot but we have observed that these empties were taken into possession by the agency on the day of occurrence but the same remained with the agency till 20-3-1995 when the parcel of these empties was received in the office of the Forensic Science Laboratory, Lahore. It is interesting to note that the appellant was arrested on 15-3-1995 and allegedly they led to the recovery of rifle P.7 on 25-3-1995. In the light of delay in sending the empties to the office of Forensic Science Laboratory, the possibility that the evidence of recovery was tailored during the investigation could not be ruled out. Fourthly, according to the prosecution case motive for the commission of this offence was that appellant and his co-accused wanted to get even with the deceased whose involvement was suspected in the murder case of brother of the appellant. We have observed that this part of the case was never proved by the prosecution before the trial Court so much so no documentary evidence i.e. F.I.R., copy of report under section 173, Cr.P.C. etc. was placed on record in support of this part of the prosecution case. Fifthly, the bare perusal of the F.I.R. reveals that prosecution had thrown its net too wide to implicate as many people as possible for appellant in this case because of his close relations with other co-accused who either have been acquitted or declared proclaimed offender, could not be ruled. Sixthly, trial Court while' disbelieving the prosecution case had already acquitted eight co-accused of the appellant and it is not safe to rely upon the same set of evidence qua the appellant in the absence of any independent corroborative piece of evidence. Seventhly, we have also observed that according to the prosecution case at the relevant time Tariq Mehmood acquitted accused was armed with gun and had caused injuries on the back of head of the deceased while standing on the roof top of the house but according to the medical evidence injury attributed to him could have been caused from the same level. Eighthly, during the investigation while disbelieving the prosecution's stand a: large number of accused involved in the case were found innocent. In the said backdrops of the case we are persuaded to extend the benefit of doubt as well in favour of Ghulam Rasool appellant. Accordingly, Criminal Appeal No.1496 of 2002 is accepted, conviction and sentence of Ghulam Rasool appellant is set aside and he stands acquitted of the charge. He shall be released forthwith if not required in any other case. For the said reasons we see no force in Criminal Appeal No.1629 of 2002 and Criminal Revision No.1040 of 2002. both stand dismissed. H.B.T./G-42/L Appeal accepted