2008 PLP 1469 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.1004 of 2002 filed by Muhammad Anwar and Zafar Ali, appellants, who were convicted under section 302(b) read with section 34, P.P.C. and sentenced to imprisonment for life with further direction to pay rupees two lacs each, in default six months' S.I. The benefit of section 382-B, Cr.P.C. was also granted to the appellants. Conviction and sentence was recorded by learned Additional Sessions Judge, Gujrat vide judgment, dated 31-5-2002. Criminal Revision No.676 of 2002 filed by the complainant for enhancement of sentence of the convict shall also be disposed of through this single judgment.

2. Briefly stated the facts of the case are that on 7-3-2001 at about 5-30 p.m., Muhammad Ikram ul Haq along with Walayat and Muhammad Aslam on different motor cycles were going towards Bhangranwala and when they reached near the wheat crop of Zafar Iqbal, Muhammad Anwar, armed with rifle (pump action) and Zafar armed with rifle .222, halted the motor cycles of Ikram ul Haq and two others. In the meanwhile Shahzad and Ehsan on a Honda 125 motor cycle armed with .44 bore rifle and mouser respectively came there. Both Shahzad and Ehsan accused started firing at Ikram ul Haq which hit on his mouth, head and chest. Zafar and Anwar accused also fired at Ikram ul Haq. The injured fell down and succumbed to his injuries at the spot. Conspiracy was also alleged against Shahzad, Ehsan, Zafar and Muhammad Nawaz. The motive alleged was that 13/14 years prior to the occurrence Muhammad Aslam son of Pola Khan was murdered. In the case of murder of Muhammad Aslam, the complainant and Ikram ul Haq, were the accused. To take the revenge of that murder, Ikram ul Haq was murdered.

3. Muhammad Anwar A.S.-I. (P.W.9) took up the investigation of the case. He, after registration of the formal F.I.R., went to the place of occurrence, prepared injury statement. Exh.PH, inquest report Exh.PJ, took into possession the blood-stained earth and empties of rifle .222 and .44 bore vide memo. Exh.PD and on 29-3-2001 and 31-3-2001 arrested Anwar and Zafar and Sarwar respectively. Ehsan and Shahzad accused could not be arrested. Both these accused were declared proclaimed offenders. After completion of the investigation, Muhammad Anwar, Zafar Ali and Ghulam Sarwar were challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 10 witnesses in all. The learned DDA tendered in evidence report of the Chemical Examiner Exh.P.M., report of the Serologist Exh.PN and closed the case of the prosecution. One constable was produced as C.W.1. The accused in their statements under section 342, Cr.P.C. pleaded false implication and in their defence produced 9 D.Ws. After conclusion of the trial, Ghulam Sarwar was acquitted while Muhammad Anwar and Zafar were convicted and sentenced as stated above.

5. Learned counsel for the appellants submits that rigor mortis starts appearing within 3 to 4 hours and reach its peak after 12 hours while in the instant case, when the doctor started post-mortem examination on the dead body of the deceased, at that time, rigor mortis started appearing which negates the time of occurrence as alleged by the prosecution. Further submits that no specific injuries were attributed to the appellants and Shahzad and Ehsan co-accused of the appellants to whom specific injuries were attributed were killed in a Police encounter. Adds that no recovery was effected from the appellants and the P.Ws. before the trial Court made many improvements. Lastly submits that the prosecution having failed to prove its case against the appellants they are entitled to acquittal.

6. Learned counsel for the complainant who has filed Criminal Revision for enhancement of sentence of the convict appellant, submits that time and place of occurrence has not been denied by the appellants in as much as it was version of the appellants before the trial Court that the murder was committed by Shahzad and Ehsan who were later on killed in a Police encounter. Further submits that it is a case of promptly lodged F.I.R., ocular account is fully corroborated by medical evidence and that the occurrence having taken place in broad-daylight, there was no question of mistaken identity. Adds that Walayat P.W. being an independent witness, his testimony cannot be discarded. Lastly submits that opinion of an expert cannot override the evidence of the P.Ws. 'Learned counsel has relied upon 2000 SCMR 400, PLD 2002 SC 62 and 2003 SCMR 884.

7. Learned counsel for the State submits that it was a case of promptly lodged F.I.R., the occurrence took place in broad-daylight, appellants were named in the F.I.R. and that the time and place of occurrence stands fully admitted. He supports the judgment of the trial Court.

8. Heard. The main stress of arguments of the learned counsel for the appellants was that Ghulam Muhammad was not an eye-witness. It may be noted that Ghulam Muhammad before commencement of the trial was murdered by the present accused party. I have gone through the F.I.R. and statements of Muhammad Aslam and Walayat P.Ws. with the above assistance of learned counsel for the parties. Both the P.Ws. namely Muhammad Aslam and Walayat had categorically stated in their examination in chief that they along with Ghulam Muhammad had seen the occurrence. The contention of the learned counsel for the complainant is thus ill founded. If for the sake of arguments, contention of learned counsel for the complainant that the occurrence was only witnessed by Muhammad Aslam and Walayat P.Ws., is accepted, then in the natural course of events, either Aslam or Walayat should have lodged the F.I.R. and not Ghulam Muhammad who came later on after hearing the fire shot. Both these P.Ws. have categorically stated before the trial Court that the Police first of all had recorded the statement of Ghulam Muhammad and thereafter, their statements were recorded. Moreso, according to F.I.R., case for the murder of Muhammad Aslam son of Pola was registered against Ghulam Muhammad complainant and Ikramul Haq, his brother. Had Ghulam Muhammad, complainant been present at the spot, as alleged by the prosecution, he should have also been murdered when the accused were four in number and were duly armed with fire-arms. There were only four injuries on the person of the deceased which were attributed to Shahzad and Ehsan who were later on killed in a' Police encounter. Ghulam Muhammad, complainant in the F.I.R. ascribed specific injuries to Shahzad and Ehsan on the person of deceased. As far as present appellants are concerned, no specific injuries were attributed to them although it was stated that both these accused also fired which hit the deceased. Later, in order to implicate the appellants, specific injuries on head, face and chest were attributed to them. Those injuries were also attributed to Shahzad and Ehsan. No recovery was effected from the appellants. It was also argued with vehemence by learned counsel for the complainant that Walayat P.W. was an independent witness which has no force for the reason that during cross-examination, it, was stated by Walayat himself that he had close relations with Ghulam Muhammad, complainant. So, Walayat cannot be termed as an independent witness. No specific motive was alleged against the appellants in the F.I.R. it was only stated that 13/14 years prior' to the occurrence, Muhammad Aslam son of Pola was murdered for which a criminal case was registered against Ghulam Muhammad and Ikram ul Haq, the deceased and for that grudge, the murder took place. Before the trial Court, the P.Ws. have admitted that in the matter of murder of Muhammad Aslam son of Pola, a compromise was entered into between the parties. Having scanned the entire prosecution case, I am of the considered opinion that the prosecution has failed to prove its case against the appellants rather the story of the prosecution is doubtful and the defence has been successful in creating dents in the case set up by the complainant party. Applying the principle of doubts in the prosecution story, I accept the appeal filed by the convict appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The appellant is in jail and shall be released forthwith, if not required to be detained in any other case. Criminal Revision No.676 of 2002 filed by the complainant for enhancement of sentence of the convict appellant is dismissed. N.H.Q./M-467/L Appeal accepted.