1994 P Cr (PLP)

Date of hearing: 20th December, 1992. This criminal appeal has been directed against the judgment, dated 27-4-1988 passed by Haji Muhammad Akram Baitu, Additional Sessions Judge, Lahore, whereby the appellant was convicted under section 302,. P.P.C. and sentenced to imprisonment for life and a. fine of Rs.10,000, in default whereof to undergo further R.I. for two years : The fine, if realized, was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Briefly the prosecution case is that P.W.3 Muhammad Sultan, brother of the deceased Niaz Muhammad on 15-5-1986 at 7-40 p.m. at New Shalimar Town, Lahore made statement Exh. PA. before P.W.10 Muhammad Yousuf, S.I. to the effect that he was running a Paan Cigarette Shop in Tollinton Market, Lahore and had come to see his brother at his house at New Shalimar Town, Lahore. They were two brothers and his deceased brother aged about 55/56 years was a contractor, resident of 116-F, New Shalimar Town, Gulshan Ravi, Lahore. He was also running a sanitary shop in the lower portion of his house. Niaz Muhammad deceased married twice. From the wedlock of Mst. Khurshid Begum he had three sons and four daughters, and from the second wife Mst. Ulfat Begum he had six sons and three daughters. Two sons namely Irfan and Usman from Mst. Khurshid Begum, due to their bad habits, had been declared "Aaq" by the deceased and also a son namely Iqbal from Mst. Khurshid Begum was turned out from the house 3/4 days earlier to the present occurrence because of disobedience. The said Irfan was married and his wife due to her bad habits was also turned out by the deceased. Thereafter Irfan alongwith his wife started living with a friend namely Imran Chaudhry who was running a workshop at 8, Abbot Road, Lahore. At about 7-15 p.m. Imran Chaudhry armed with fire-arm reached the shop of the deceased and fired at him which hit on front of the throat of the deceased. The deceased fell down on the Thara near the door of the shop. P.W.5 Muhammad Farman was also present inside the shop, who while witnessing the occurrence came out of the shop and raised hue and cry, on which complainant Muhammad Sultan (P.W.3) alongwith Muhammad Ehsan (P.W.4), nephew came down from the upper storey. The appellant alongwith the fire-arm escaped on a wagon which was parked near the shop, in which 2/3 persons were sitting. Muhammad Ehsan (P.W.4) took the deceased in injured condition to the Mayo Hospital, Lahore. The deceased succumbed to his injuries on the way. The deceased used to admonish the appellant due to his relations with his sons Irfan etc. and due to the said grievance the appellant alongwith his companions who could be identified by the complainant, P.W.4 and P.W.5 if they were brought before them, had killed innocent Niaz Muhammad.

3. P.W.10 drafted the complaint Exh.PA. and sent it to the police, where on the basis thereof formal F.I.R. Exh.PA./1 was recorded by P.W.2 Habib ur-Rehman, S.I. The appellant was challaned and sent up for trial. A charge under section 302, P.P.C. was framed against him, which he denied and claimed trial.

4. The prosecution examined 10 P.Ws. in all to substantiate its case. P.W.5 Farman son of the deceased is the only eye-witness of the present occurrence, who stated that at the relevant time he was present in the shop with his deceased father when the appellant Imran Chaudhry armed with his gun reached there and fired from his gun at the deceased, and thereafter the appellant ran away towards Super Market in a wagon. The deceased had fallen down after sustaining fire-arm injury. P.W.5 Farman raised a noise, which attracted his brother P.W.4 Ehsan and uncle-complainant Muhammad Sultan P.W.3) who had also witnessed the appellant going towards the wagon. P.W.4 alongwith P.W.3 Muhammad Sultan complainant, paternal-uncle was present in the upper storey of the house. They heard a noise and they were informed by P.W.5 that the appellant had fired at his father by a gun. P.W.3 alongwith P.W.4 came down and witnessed the appellant with a gun in his hand, running towards a wagon, boarded it and fled away towards the Super Market. P.W.4 noticed a gunshot wound on the throat of his deceased father, who had fallen on a Thara of the shop. The deceased was taken to the hospital who expired on the way. P.W.4 further stated that 2/3 persons were also sitting in that wagon. The occurrence was seen by Farman P.W.5. P.W.3 Muhammad Sultan is not the eye-witness of this incident. He, however, narrated the facts mentioned by him in his complaint Exh.PA.

5. The medical testimony has been furnished by P.W.7 Dr. Saleh Yousuf who found an oval wound of entry 7 x 5.5 c.m. in the mid-line at the base of the neck, front of chest between the supra sternal notch and amnubrium sterni edges inverted and abraided. Sternum shattered alongwith the right clavicle and a plastic wad was recovered from the depth of the wound. Numerous pellets embedded in the sternum. Muscles around the wound badly bruised and smashed with clotted blood present in them. On exploration of the injury 2, 3 and 4 right ribs were posteriorly. Right pleura was ruptured and cavity contained one litre of blood and clots and numerous pellets. There were multiple small perforations in the upper lobe of the right lung and pellets were embedded in it. Right common carotid and right subclavian vessels ruptured. The injuries were ante-mortem and caused by fire-arm. Cause of death was injury No.1 leading to major blood vessels and lung causing profuse haemorrhage and shock resulting in death and was sufficient to cause death in the ordinary course of nature. Probable time between the injury and death was a few minutes and between the death and post-mortem was less than 24 hours. During cross-examination P.W.7 stated that he did not see any blackening on the clothes or scorching around the wounds of the deceased. He further stated that whenever the fire-arm is shot at a distance of one yard, it generally causes blackening.

6. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and stated that he had been falsely implicated in the case. The deceased and his family members suspected his relations with Mst. Razia, wife of Irfan son of the deceased and also suspected that he had also got jailed the said Irfan. The witnesses were related inter se and inimical towards him and had falsely deposed against him. The appellant had not made statement on oath as envisaged under section 340(2), Cr.P.C., but produced D.W.1 War Yasin, Ahlmad of the Court of Mr. Hameed-ud -Din Bhatti, Magistrate 1st Classy Lahore Cantt., who deposed about the alleged fake recovery of gun P.4.

7. I have heard the learned counsel for the appellant, the learned State counsel and have perused the record. Exh.PA. is the statement of the complainant on the basis of which formal F.I.R. Exh.PA./1 was scribed by P.W.2 Habib-ur-Rehman, S.I. at the police station. Although the police station is at a distance of 2 kilometres, P.W.10 Muhammad Yousuf S.I./I.O. in his first inspection note has not stated specifically about the presence of any P.W. at the spot, allegedly witnessing the occurrence. Moreover, in his inquest report Exh.P.l and injury statement Exh.P.J., the cause of death is alleged to be caused by some fire-arm, but he had found no empty at the spot and also had not mentioned anything about the present occurrence as to how the incident took place. F.I.R. Exh.PA./1 recorded on the basis of statement. Exh.PA. has not been drafted on the statement of an eye-witness, whereas P.Ws.3 and 5 have specifically stated that their statements were recorded at the police station, where they remained present till 11 o'clock, and thereafter the police reached the spot and the statements of P.Ws. were recorded. It is also not mentioned by P.W.10 in the first case diary that he had recorded the statement of Farman P.W.5.

8. No empty was secured or found by the Investigating Officer at the spot on his first visit and in the circumstances the alleged recovery of gun P.4 at the instance of the appellant had no corroborative value. It was also contended that P.W.5 Farman is the only eye-witness who stated during cross-examination that the deceased was sitting at a distance of 2/3 feet from the Thara of the shop and he was fired at by the appellant from a distance of one foot, whereas Dr. Saleh Yousuf (P.W.7) during cross-examination specifically stated that he had not found any blackening on the clothes or scorching around the wounds of the deceased, and whenever the fire-arm is shot at a distance of one yard, it generally causes blackening. In view of the facts brought on the record, the ocular account furnished by the statement of P.W.5 is not in consonance with the medical evidence put up by P.W.7 Dr. Saleh Yousuf. The appellant raised the plea of false involvement in the present case. From the very beginning the police had registered the case under section 302/34, P.P.C., even though no other co-accused was arrested by the police in the present case and only Iqbal son of the deceased was suspected as an accused, who remained with the police for 7/8 days. The circumstances on record clearly show that there was no evidence with the Investigating Officer that the appellant had only committed the offence or more than one persons were involved in the commission of offence. The record states otherwise. As the case at the earliest was registered under section 302/34, P.P.C. P.W.5 the only eye-witness is the son of the deceased, P.W.4. Muhammad Ehsan and P.W3 Muhammad Sultan complainant who were alleged to have been attracted to the place cal occurrence by the noise of P.W.4 are sons and brother respectively of the deceased. P.Ws.4, 5 and 3 are residents of Old Anarkali, Lahore, which is at a from the P.Ws. No the vicinity has been brought forward or ever cited as P.W. in the account furnished by the statement of P.W.5 is not in conformity with the medical evidence made by P.W.7. The recovery of gun P.1 has no evidentiary value. No independent corroboration is brought on record to prove the guilt of the appellant. N.H.Q./I-64/L Appeal accepted.