1999 PLP 3324 (MLD)

6. Dr. Muhammad Shahid Saleem P. W.4 conducted post mortem examination on the dead body of Shafqat Ali on 4-9-1991. Following injury was found by the Medical Officer on the dead body: A lacerated wound 18 cm x 8 cm x brain cavity deep on the head. Brain matter was severely lacerated and coming out. Both parietal and temporal occipital and frontal bones were fractured. Brain cavity was full of blood. Wound was directed from right to left. Three metallic pieces were recovered from the brain cavity. Blackening was present on the wound. Major part of skull, scalp and brain matter had blown away. Wound extends 4 cm above the right ear to 4 cm above the left ear and from frontal part of skull, occipital part intenoposteriorly.

7. The injury was antemortem and was caused by firearm. The time between post-mortem and death was given as 24 hours. In cross examination medical officer admitted that according to police report death occurred on 3-9-1991 at 6.15 P.M.

8. Noor Muhammad constable P. W.1, Muhammad Tufail constable P. W.2, Ahmad Ali Draftsman P. W.3, Razia Ribi P. W.5, Rashid Ahmad P. W.6, Walliat P. W.7 and Mushtaq Ahmad S.I/S.H.O P. W.8 were examined by the prosecution to prove its case against the accused.

9. The accused in their examination under section 342, Cr. P.C. denied the prosecution case against them. Muhammad Ashraf stated that it was an unseen occurrence and he was involved in the case due to enmity and suspicion. He also stated that deceased had so many enemies and was done to death by unknown assailants.

10. Learned trial Court believed the prosecution case to the extent of Muhammad Ashraf alias Kali and convicted and sentenced him as noted above. Muhammad Ashraf filed Criminal Appeal No. 509/1992. Matter has been referred to this Court by trial Court for confirmation or otherwise of death imposed on Muhammad Ashraf vide Murder Reference No. 355/1991.

11. Learned counsel for the appellant as well as stated have been heard in the matter.

12. Learned counsel for the appellant contended that occurrence allegedly took place in the village Kot Ghulam Muhammad Dakhli village Mehmood Khokhar but no one from the locality came forward to state that any occurrence in the village had taken place as alleged by the prosecution or not. It was submitted that according to complainant a large number of people had gathered at the condolence ceremony but not a single person supported the prosecution regarding the incident or involvement of the present appellant in the case. It was submitted that even the investigating officer admitted that he had associated about a dozen persons with the investigation of the case and this was done as the incident was an unseen occurrence and no body knew as to who the assailant was and present appellant was involved in the case due to suspicion alone. It was contended that learned trial Court had disbelieved the prosecution case to the extent of majority of the accused and it was not shown as to how the case of the present appellant was distinguishable from that of the acquitted accused. It was argued that conviction of the appellant was based essentially on the opinion of the investigating officer and the same was thus unwarranted and unsustainable. Learned counsel for the State supported the impugned judgment and submitted that it was a day time occurrence and identity of the assailant could not be mistaken and no reason has been advanced for substitution of the appellant for the real culprit.

13. According to Razia Bibi, her maternal uncle Ghulam Muhammad resident of village Kot Ghulam Muhammad died about 7 days prior to the incident and she alongwith the deceased and other had gone to the offering which was given on the 7th of death of Ghulam Muhammad and a large number of men and women of the brotherhood were also invited who were served meals after 3 p.m and when others had left, the complainant alongwith her son and witnesses sat in the courtyard of Muhammad Yousaf when the appellant alongwith co-accused came to the spot and fired at the deceased. Neither in the course of investigation nor subsequently at the trial any body from the house of Ghulam Muhammad maternal uncle or from village Kot Ghulam Muhammad itself came forward to support the case of the prosecution that any ritual was held in the village on the date of occurrence. The occurrence in this case allegedly took place in the house, of Muhammad Yousaf but none from that house supported the prosecution case regarding taking place of occurrence at 3 P.M. or involvement of the appellant. The Medical Officer admitted m cross examination that according to police report death occurred on 3-9-1991 at 6.15 P.M. Muhammad Tufail constable P. W 2 escorted the dead body of deceased to Civil Hospital Chunian for post mortem examination. He admitted in cross examination that dead body was collected by him from village Tangrian. The occurrence in the case had taken place in village Kot Ghulam Muhammad and not in village Tangrian and, therefore, collection of dead body from village Tangrian shows that occurrence had not taken place in village Kot Ghulam Muhammad as claimed by the prosecution.

14. Mushtaq Ahmad S.I./S.H.O. P. W.8 admitted that Mubarik Ali, Asghar Ali, Waryam, Safdar, Khan Muhammad, Amanat Ali, Abdul Qavi, Muhammad Akram, Muhammad Sharif, Sher Muhammad joined the investigation and he recorded their statements and that they supported the prosecution case to the extent of Muhammad Ashraf only. None of the aforementioned persons came forward to testify in support of prosecution case. Mere opinion of investigation officer or conclusion drawn by him is not a substitute for evidence which is led at the trial and, thus could not have provided any basis for recording conviction of the appellant.

15. As observed above no concrete evidence was led at the trial to show that any post mortem ritual was held in the village Kot Ghulam Muhammad where the occurrence took place. It is also a matter of common knowledge that women are not invited to such offerings and only men take part in such rituals. Presence of Razia Bibi complainant and of her brother Rashid Ahmad at the spot is not supported by any other material on record. The eye-witness account is also suspect. According to medical evidence, the deceased .was fired at from a very close range as his skull was virtually blown away. In case the complainant or the P. Ws. were present at the spot, they would not have allowed the accused to have approached the accused carrying a gun and to have shot at him from point blank range. There is another aspect of the matter. In case shooting had taken place as alleged, the persons sitting close by the victim would have been hurt or injured. Neither the complainant nor other witnesses received a scratch during the incident.

16. We have examined the record with meticulous care. The evidence on record does not inspire confidence. Case of the prosecution is not supported by any other independent witnesses or person from the locality where the occurrence took place. The material brought on record qualitatively was not of a degree to have warranted conviction of the appellant on a capital charge. The enmity between the parties was admitted and an over all view of the case shows that incident was an un-witnessed one and appellant was involved in the case due to suspicion which lurked in mind of the complainant party.

17. For the foregoing reasons we allow the appeal filed by Muhammad Ashraf, set aside conviction and sentence awarded to him and acquit him from the case. He shall be released from custody if not wanted in any 8 other case.

18. Murder reference is answered in the negative. H.B.T./M-750/L Appeal allowed.