1986 P Cr (PLP)

(3) Two oval‑shaped fire‑arm wounds of enterance, 3 x 1 c.m. and 2 x 1 c.m. and penetrating into the skull. The margins sere inverted and black. (4) Oval‑shaped fire‑arm wound of enterance. 2 x 2 c.m. x penetra ting into the abdominal cavity. Margins were inverted and black, 2.5 c.m. above and left to the umblicus. (5) Oval‑shaped fire‑arm wound of entrance. 4 x 5 c.m. x penetrating pinto the abdominal cavity. Margins inverted and black. It was 5 c.m. above and outer to injury No.4. (6) Oval‑shaped fire‑arm wound of enterance, 1.5 c.m. x 1 c.m x penetrating into the abdominal cavity, 5 c.m. below and outer to injury No.5. Margins were inverted and black. (7) Oval‑shaped fire‑arm wound of enterance, 1.4 x 8 x 5 c.m. on the right leg, 10 c.m. below the right knee joint. One pellet brought out from this wound. (8) An abrasion 2 x 1 c.m. on the inner side of left leg, 8 c.m. below injury No. 7. (9) An abrasion 3 x 1 c.m. on the back of right leg, in middle part. (10) An abrasion 1 x 1 c.m. on the left knee. (11) An abrasion 1 x 1 c.m. on the left leg, 5 c.m. below the left knee. (12) An abrasion 6 x 1 c.m. on the middle of left leg in front. (13) Four wounds of exit oval in shape, measuring 2 x 1, 5 c.m., to 1.5 x 1 c.m. in an area 6 x 5.c.m. on the back of left side of abdomen, 12 c.m. outer and left to the vertebral column. Margins were everted. (14) An abrasion 3 x 1 c.m. on the left outer side of abdomen. (15) An abrasion 3 x 5 c.m. on the left outer side of abdomen, 7 c.m. above injury No.14. (16) An abrasion 4 x 1.5 c.m. on the back of left buttock in oblique direction. (17) Lacerated wound 6 x .5 c.m. x muscle deep on the inner side of the left thigh in upper one‑third Direction was oblique. Margins were black. In his opinion, the death was due to shock and haemorrhage and injuries to brain spleen, intestines and stomach, resulting from injuries Nos. 1,3,4.5 and 6 which were sufficient to cause death in the ordinary course of nature individually and collectively. These injuries were caused by fire‑arm weapon. Rest were by blunt weapon: Injuries were ante‑mortem. Injury No.7 was also caused by fire‑arm. Time between injuries and death was immediate and time between death and post‑mortem was about 36 hours.

6. Copy of the F.I.R. was sent to Fazal Muhammad, S.H.O., P.W.15, Who was present in Thatha Jabana, a village six miles away from the Police Station. He reached the spot at 2‑00 p.m. and from there took into possession two crime empties Exh. P.5/1‑2, vide memo. Exh. P.G. He recovered 66 pieces of card boards from Baithak, vide memo. Exh. P. H. The two planks of the door were taken into possession vide memo. Exh P.A. The clothes and other articles of the deceased Exhs. P.8 to P.11 which were lying inside the Baithak were also taken into possession," vide memo. Exh. P.L. Twenty‑two pellets after being extracted from the wall of the Raithak were taken into possession, vide memo. Exh, P.J. and burnt 'Sarkandas: were taken into possession, vide memo. Exh: P M. Five more pellets P.12 to P. 16 were extracted from the wall of residential house of one Rustam and taken into possession, vide memo. Exh. P.N. Three more pellets Exhs. P .17 to P.19 were removed from the trunk of 'Dharek Tree' and were taken into possession, vide memo. Exh.P.O. Five pellets Exhs . P .20 to P .24 after having been extracted from the wall of Baithak of Muhammad Bakhsh P.W. taken into possession, vide memo. Exh.P.Q. The recovery memorandas were attested by Muhammad Bakhsh P.W.6 and Zille Muhammad (not produced).

7. The S.H.O. arrested Allah Bakhsh, Sarfaraz and Abdullah acquitted accused on 10‑3‑1978, 11‑3‑1978 and 15‑3‑1978, respectively. Abdullah co‑accused got recovered gun Exh. P.25 and cartridges Exhs. 26/1 to 3 which were taken into possession, vide memo. Exh. P.R. Sarfaraz acquitted accused also got recovered gun Exh. P.26 and cartridges Exh. P.28/1‑2 from his cattle shed which were taken into possession, vide memo. Exh. P.H. Ali Asghar Shah acquitted accused, Ejaz and Ghulam Rasool. appellants were declared absconders It may be noticed that nothing incriminating was recovered from the appellants. The case was investigated by different police officers. Ali Asghar Shah co‑accused was found innocent during the investigation.

8. To prove its case prosecution produced 16 witnesses. Ghulam Shabbir P.W.11 and Muhammad Ramzan P.W.12 have given the ocular account of the occurrence. They claim to have seen Ali Asghar Shah, Ejaz and Abdullah firing shots which hit the deceased on his head and abdomen. They also claim to have seen Allah Bakhsh giving Lathi blow to the deceased and Ghulam Rasool appellant raising Lalkaras at the time of occurrence. Muhammad Bakhsh P.W.

6. Jeewan P.W.7 and Fazal Muhammad, S.H.O. P.W. 15 were produced to prove the recoveries of the articles from the spot and recoveries of guns and cartridges from Abdullah and Sarfaraz acquitted accused. Dr. Munawar Hussain Choudhary had conducted the post‑mortem examination on the dead body. The rest of the evidence is more or less of formal nature. Mirza Abdul Jaleel, D.S.P., who had also investigated the case was examined as Court Witness. He stated that the F.I.R. was lodged by the complainant party after consultation with Sultan Mehmood Gadi and Ali Asghar Shah was found innocent.

9. When examined under section

342. Cr.P.C. the appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence no witness was produced.

10. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants, that the eye‑witnesses having been disbelieved by the trial Court to the extent of the acquitted accused the appellants could not have been convicted on the statement of the eye‑witnesses without independent corroboration, and that the judgment of the learned trial Court is based on surmises and conjectures. Conversely, the learned counsel for the State has supported the judgment of the trial Court

11. I have considered the arguments advanced by the learned counsel for the parties with core. I find that there was a deep‑rooted enmity and long litigation between the parties Ghulam Shabbir P.W.11 and Muhammad Ramzan P.W.12 are the most interested persons. Although they claim to have seen Abdullah and Ali Asghar Shah firing shots' from their guns hitting the deceased on head and abdomen yet trial Court has acquitted them and that too for good reasons. The motive to kill the deceased was with Ali Asghar Shah who has already been acquitted by the trial Court. The fire‑arm injuries found on the head of the deceased having been attributed to Ali Asghar Shah and Ejaz appellant, the case of Ejaz is not distinguishable from that of Ali Asghar, who has been acquitted by the trial Court. Admittedly the eye‑witnesses are interested and partisan. They have already been disbelieved to the extent of Ali Asghar Shah and three other co‑accused to whom active role had been assigned by them therefore, the rule of prudence requires independent corroboration of their statement qua Ejaz and Ghulam Rasool appellant which I do not see in the case in hand. Strangely enough, the prosecution case is that Ghulam Rasool appellant was carrying a hatchet and he did not cause any injury to the deceased yet the trial Court has held that Ghulam Rasool and none else had given Danda blows to the deceased. For all these reasons, I am of the view that the prosecution has not been able to prove its case beyond reasonable doubts against the appellants.

12. The upshot of the above discussion is that there being not satisfactory basis to uphold the conviction and while giving the benefit of doubt, the appellants are acquitted of the charge. They stand discharged of bail bonds. H.A.K. Appeal accepted.