1985 PLP 1323 (MLD)

This is an appeal by Hassan (30) against his conviction under section 302, P.P.C. by learned Additional Session Judge, Vehari, who, vide judgment, dated 1-9-1983, sentenced him to imprisonment for life and a fine of Rs. 5,000 or in default one year's R.I. for the murder of Noora. It was ordered that half of the fine, if recovered, be paid to the heirs of the deceased. Qutba and Falak Sher accused also faced trial alongwith Hassan appellant. Qutba was acquitted, vide impugned judgment. Falak Sher accused absconded during the trial. He was arrested and tried by another Judge who acquitted him from the charge.

2. The occurrence in this case took place at 9-30 p.m. on 27-11-1981 in the courtyard of Qadir Musalli in Chak No. 158/E. B. , 15 miles from P.S. Sadar Burewala, District Vehari. The F.I.R. Exh. P.B. was recorded on 5-00 a.m. on 28-11-1981 by A.S.-I. Muhammad, Bashir P.W.11 on the statement of Mughla. It was stated by Mughla complainant in the F.I.R. that on 27-11-1981, at 9-30 p.m. he alongwith his brother Ali Muhammad P.W., his cousin Falak Sher P.W. and his cousin Noora deceased went to the house of Qadir Musalli to see Tamasha. A patromax was burning. Noora deceased sat on a cot while the complainant Mughla, Ali Muhammad. and Falak Sher were still standing. Suddenly, Qutba (acquitted accused) came from front side. At that time, Hassan accused (appellant) armed with .12 bore pistol and Falak Sher (since also acquitted) also armed with .12 bore pistol came there. On the exhortation of Falak Sher, Hassan appellant fired at Noora deceased from back on his head from close range. Noora ws injured. The accused ran away shouting Lalkara and firing in the air.' Noora was taken in a tractor trolley to Nishtar Hospital, Multan, but he died in the way on account of the said injury. It was further staffed that about 21 years before the occurrence, Amir, a brother of Hassan appellant was murdered for which Ghulam alias Gomi and Ahmad Yar real brothers of Noora deceased and others were prosecuted but acquitted. The accused committed the murder of Noora on account of that enmity.

3. The Police after registration of the case, undertook investigation. Dr. Akhtar Hussain Jafri P.W.10 stated during trial that on 28-11-1981, at 3-30 a.m. he had medically examined Noor Ahmad and noted a lacerated wound 1.5 c.m. x 1 c.m. going deep on the skull on occipital area on the middle. The wound was surrounded by a burnt, braided and lacerated area of 3 c.m. diameter and was bleeding. The patient was in deep coma and the pupils were dilated and did not re-act to light. The injury had been caused by a fire-arm within 9 hours duration and was dantierous to life. On the same day, Noor Ahmad died at 5-00 a.m., i.e. on 28-11-1981. This Medical Officer conducted post-mortem examination on the dead body of Noor Ahmad at 2-30 p.m. on the same day and noted multiple lacerated wounds mixed together in an area of 5 c.m. surrounded by blackened and charred tissues on the back of head over the occipital area in the middle line. On dissection, subcutancous tissues of scalp were removed and a large clot of blood was found over the occipital, right and left parietal and temporal areas. The occipital, right anti left parietal and both the temporal bones had been fractured. The skull had six fractures. In the opinion of the Medical Officer, the death of Noora had occurred due to shock and haemorrhage as a result of the fire-arm injury described above. The injury was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was within nine hours and the post-mortem was conducted within 10 hours of the death. The police during spot inspection took in possession the cot on which Noora deceased was sitting at the time of occurrence, vide memo. Exh. P.J. A crime empty P.10 was found lying at the spot. It was taken in possession, vide memo. Exh. P.J. The patromax which was burning at the time of occurrence was taken in possession, vide memo. Exh. P.D. All these memos. were prepared by A.S.-I. Muhammad Bashir P.W.11 in the presence of Ahmad P.W.7~ and Muhammad Hussain given up P.W. Falak Sher acquitted accused got recovered pistol P.5 and two live cartridges P.6 and P.7 which were taken in possession, vide memo. Exh. P.C. by S.I. Mehdi Hassan P.W.9 in the presence of Ali Muhammad P.W.5 and Falak Sher P.W.6. Hassan appellant after his arrest on 1-12-1981, led to the recovery of a pistol and a live cartridge. The memo. of recovery as well as the pistol and the live cartridge were no produced in evidence during the trial. There is, however a report o the Forensic, Science Laboratory, Lahore Exh. P.P. that the crime empt P.10 had been fired from a pistol. This report is of no value because it is not known as to whom the said pistol belonged nor the said pistol was produced during trial. Hassan appellant and his two acquitted accused were challaned after completion of the investigation.

4. The prosecution during the trial examined 11 witnesses in all. Mughla P.W.4, Ali Muhammad P.W.5 and Falak Sher P.W.6 were examined as eye-witnesses. Dr. Akhtar Hussain Jafri P.W.10 furnished medical evidence. The case was investigated by A. S.-I. Muhammad Bashir P.W.11 Ahmad P.W.7 and Muhammad Hanif P.W.8 were examined to support the recovers from the place of occurrence and from the accused. Ali Muhammad P.W.5 and Falak Sher P.W.6 also made statements about recoveries from Falak Sher acquitted accused. The evidence, of rest of the witnesses was of formal nature. The accused when examined under section 342, Cr.P.C., denied the charge. They pleaded innocence and did not produce any evidence in defence. The learned trial Judge placed reliance on the evidence of the eye-witnesses and convicted Hassan appellant.

5. I have gone through the record of this case and have heard the learned counsel for the appellant as well as the learned Assistant Advocate-General. The prosecution case is supported only by the three eye-witnesses mentioned above. There is absolutely no circumstantial evidence to corroborate the eye-witnesses. Mughla P.W. 4 and Ali Muhammad P.W.5 are brothers inter se. They are cousins of Noora deceased, Falak Sher P.W.6 is also their cousin. It is admitted by Mughla P.W.4 that Noora deceased was involved in a dacoity case alongwith Yara and Nazir. It was admitted by him that whenever there is any theft or dacoity in the area, the accused of this case always raised suspicion against Yara and other of involvement in those cases. He also admitted in cross-examination that the present accused and others are our enemies. It was stated by him in cross-examination that Nazir Dhudhi was also present in the courtyard of Qadir Musalli at the time of occurrence alongwith about 200 other persons who did not stand witness against the accused due to the fear of the accused because Lambardar belonged to their group. He admitted that Nazir Dhudhi had also fired one shot there which might be with .12 bore pistol. It was stated by him that a national identity card of one Mumi nephew of Hassan accuse? was found at the place of occurrence and that the same was produced before the Police. Ali Muhammad P.W. also admitted that "our family has enmity with Qutba and Hassan accused present in Court". He also admittedE the presence of about 200 spectators in the Akharra. He further stated that there were in all three fire shots. It was admitted by him that Bashir Randlana was sitting close to Noora deceased at the time of occurrence. Similarly, it was admitted by Mughla P.W.4 tha: Noora deceased sat on a cot where some other people including Bashir and Ashraf were already sitting. Falak Sher P.W 6 in his examination-in chief exonerated Falak Sher accused acid stated that only Qutba and Hassan were the two accused. He admitted in cross-examination that Ghulam, a brother of Noora at the time of occurrence and that he alongwith others attended Noora deceased at that time. He admitted to be a Police volunteer and Havaldar. It would thus be clear that these three witnesses are not only related Noora deceased but were also on inimical terms with the accused. It is in evidence, as stated above, that Ghulam, a brother of Noora deceased against whom Hassan accused had a direct motive was also present in the Akharra at the time of occurrence. He should, therefore, have been the first target. Noora deceased was a thief and was involved in dacoity case. He, therefore, had other enemies as well. The residents of the village including the present accused always suspected them whenever there was any occurrence of theft or dacoity. It is in evidence that the deceased and his brother and cousins were involved in theft and dacoity case. The injury was received by Noora deceased on back of his head. It was night time. It appears that someone from behind fired at Noora and injured him as a result of which he died at a later stage. The three eye-witnesses did not see the assailant of Noora deceased. Even if it is assumed that they were present at the spot at the time of occurrence, then also it could not be said that they saw the occurrence. They have come forward to make statements against the accused on account of their relationship with the deceased and enmity with the accused. They have not been supported by any independent circumstantial evidence. According to the ocular account, a large number of persons were present at the spot at the time of occurrence but no one has come forward to support the prosecution case. It is not safe to convict the appellant on the basis of interested evidence without independent corroboration.

6. In view of the above discussion, I am of the view that the case against Hassan accused-appellant was not free from doubt. His appeal is accepted. Giving him benefit of doubt, I acquit Hassan appellant. His conviction and sentence under section 302, P.P.C. is set aside. He will be released from prison forthwith, if not required in any other case. S. A. Appeal accepted.