P L D 1992 Lahore 221 (PLP)

SARDAR MUHAMMAD DOGAR, J.‑‑Fazal Hussain was standing, at a distance of half furlong from Chowk Jalalpur Sobtian on the road leading to Kotla, alongwith his sons Khadim Hussain and Safdar Hussain and wife Mst. Ghulam Sakina, waiting for a tonga to go to their village at 1‑00 p.m. on 16‑8‑1986. Ghazanfar came there with his tonga. When Fazal Hussain, his sons and wife were about to board the tonga, Muhammad Saleem and Muhammad Shabbir armed with rifles, Mazhar lqbal armed with a gun and‑ Lal. Khan armed with a revolver appeared from behind a room situated closcby, raising Lalkaras that they had come to avenge the murder of Muhammad Bashir. Muhammad Saleem fired a shot from his rifle which struck Khadim Hussain on the chest. The accused ran away on the noise raised by Fazal Hussain and others. Khadim Hussain died at the spot.

2. The motive for the occurrence was the murder of Muhammad Bashir son of Lal Khan and brother of the other three accused 2‑1/4 years ago, in which Fazal Hussain complainant, his sons Khadim Hussain (deceased) and Sakhawat Hussain and his brother‑in‑law Talib Hussain were challaned, but were later acquitted.

3. FIR was lodged by Fazal Hussain on the same day at 3‑00 p.m. at Police Station Karianwala, District Gujrat at a distance of 4 miles from the place of occurrence. It was recorded by Khadim Hussain, S.I./SHO (P.W.10).

4. Khadim Hussain, SHO after registering the case reached the spot and despatched the dead body for post‑mortem examination after preparing necessary papers. He also collected blood‑stained earth and empty cartridge of 7 m.m. rifle vide memos. Exhs.PH and PI respectively. All the accused were arrested by him on 6‑9‑1986. 7 m.m. rifle P.5 got recovered by Muhammad Saleem on 17‑9‑1986 was taken into possession by him vide memo. Exh.PE. After completion of necessary investigation he submitted the challan to Court.

5. All the four accused were tried by the Additional Sessions Judge, Gujrat under section 302/34, p.P.C. Vide judgment. dated 1‑11‑1989, learned trial Judge convicted Muhammad Saleem under section 302, P.P.C. and sentenced him to death plus to pay a fine of Rs.20,000 in default whereof to undergo R.I. for 2 years. Half of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased‑ The other three were acquitted vide same judgment.

6. The convict has filed appeal. Learned trial Judge has made reference for confirmation of death sentence. Both the matters are being disposed of together.

7. Statements of eleven P.Ws. were recorded at the trial. Positive reports Exh.PL,PI/L and PK from the office of Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence. Dr. Syed Talat lqbal who had performed autopsy on 17‑8‑1986, appeared as P.W.3. He had noted following injuries on the body Of the deceased:‑‑ (1) A fire‑arm wound of entry 1.5 c.m. x I c.m. on back of upper and outer part of right side of chest, 9 cm below top of right shoulder, corresponding mark on shirt present, marked and signed. Shirt and Bunyan were heavily stained with blood. (2) A fire‑arm wound of exit 4 c.m. x 3 c.m. on front of middle of left side of chest, just below nipple corresponding marks on shirt and Bunyan were present, marked and signed. (3) Gutter shape fire‑arm wound 3 c.m. x 1.5 cm on back lower part of left forearm. On dissection, right lung, 4th rib on the right side, ascending aorta, middle of left lung and medial part of second rib were found damaged. Death was opined to have occurred due to shock and haemorrhage, resulting from injury No.1, caused by a firearm. Time between injuries and death was opined to be within a few minutes, while the duration between death and post‑mortem was opined to be about 24 to 30 hours. During cross‑examination he stated that the injuries had been caused from a distance of more than 6 feet.

8. Muhammad Ansar, Constable who had been entrusted the parcels pertaining to‑ blood‑stained earth and empty, collected from the spot on 25‑8‑1986 for onward transmission to the offices of the Chemical Examiner and Forensic Science Laboratory, appeared as P.W.7, and stated that he had deposited the parcels with the concerned laboratories, on the same day.

9. Muhammad Azam, Constable who had been entrusted the parcel containing 7 m.m. rifle on 8‑10‑1986 for onward transmission to the office of the Forensic Science Laboratory, appeared as P.W.1. and deposed that he had deposited the parcel with the said office on the same day.

10. Ocular account was deposed to by Fazal Hussain (PW8) and Safdar Hussain (P.W.9). Fazal Hussain while narrating the facts given by him in the FIR made a departure from the same, in that, he stated that the shot fired by Muhammad Saleem had struck Khadim Hussain on the right side of his back and that after he had fallen, all the accused had resorted to firing and one of the said shots, had struck the deceased on the left arm near the wrist. During cross -examination he admitted that he had been challaned after the Partition of the country, for the murder of 'Mother of Lal Khan (acquitted accused) (i.e. grandmother of the appellant). He admitted that two cases under the Arms Ordinance, registered at the instance of his brother Lal Khan (acquitted accused) were pending in Court. He gave out that Lal Khan had also got a case registered against him under section 307; P.P.C. and the same was also pending trial. He stated that after the murder of Bashir he had shifted along with his family, from village Kanian to village Dallowali in District Sialkot. However, he added that they had returned to village Kanian 15‑16 days prior to this occurrence. He gave out that at the time of occurrence they were carrying sugar, rice, lemon and a bag containing clothes. However, he stated that they did not find those articles after the occurrence as some people had taken away the same from the spot as they were scattered. He claimed that he had made a supplementary statement a minute after lodging the FIR. He denied the suggestion that he had not witnessed the occurrence and had been sent for after the murder of his son and had thereafter lodged the F.I.R. falsely.

11. Safdar Hussain P.W.9 while corroborating the statement made by Fazal Hussain his father, in so far as it pertained to the actual occurrence, stated that after the deceased had been hit by the shot fired by Muhammad Saleem, the other accused had also resorted to firing and the shot fired by one of them had hit the deceased on the left wrist. He also claimed to have witnessed the recovery of 7 m.m. rifle at the instance of Saleem appellant. During cross‑examination he admitted the suggestion that in the FIR lodged for the murder of Bashir (brother of the appellant) the accusation was that his maternal‑uncle Talib Hussain had fired at Bashir deceased and killed him. He gave out that after the murder of Bashir, the family of his father including himself, had shifted to Sialkot and were living there till that day, i.e. the day he was making statement (the statement was made on 24‑7‑1989). He stated that the Police had recorded his statement at the spot at 3‑30 p.m. He gave out that all the four accused were arrested from village Kanian on the following day of the occurrence. He stated that at the time of recovery of rifle the Chairman of Jalalpur Sobtian was also present and he had signed the memo. as well. He denied the suggestion that he had made a false statement.

12. Khadim Hussain, SHO who had registered the case and submitted the challan to Court after completion of necessary investigation, appeared as P.W.10 and gave the details of the investigation. He also stated that he found Mazhar Iqbal, Lai Khan and Muhammad Shabbir (acquitted accused) innocent during the investigation and so had placed their names in column No.2 of the challan. During cross‑examination he stated that he had reached the place of occurrence at 4‑15 p.m. He gave out that except empty cartridge nothing else was found by him lying near the dead body. He admitted that in the body of inquest report he had mentioned only, about one shot having been fired by Muhammad Saleem and of the same having hit the deceased on the chest. He conceded that he had not mentioned the fact of supplementary statement of Fazal Hussain having been recorded, in report under section 173, Cr.P.C. He denied the suggestion that he had investigated the case dishonestly and planted the recovery of empty as well as rifle from the appellant.

13. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. He stated that only Talib Hussain had committed the murder of his brother Bashir and so they had no motive or grievance against the complainant party. He denied to have led to the recovery of rifle P5.

14. Learned counsel for the appellant after having taken us through the evidence criticised the impugned judgment and contended that the prosecution had failed to prove the motive; that the eye‑witnesses do not appear to have witnessed the occurrence; that the ocular account has been furnished by the interested and inimical witnesses; that the medical evidence contradicts the ocular version and that no reliance can be placed on the report of Forensic Science Laboratory regarding wedding of empty with the rifle alleged to have been recovered at the instance of the appellant, for the reason, that the evidence of recovery of empty from the spot as well as the rifle from the appellant, was not confidence inspiring, and so not worth acting upon. 15, Learned counsel for the State defended the judgment of the trial Court ,

16. There is enough evidence on record in support of the proposition that enmity existed between the family of Lal Khan (father of the appellant) and Fazal Hussain (father of the deceased) even though they were brothers. In that, Fazal Hussain had faced trial for the murder of mother of Lal Khan along with others and had also stood trial for the murder of Bashir son of Lal Khan. He was also facing trial in a case registered under section .307, P.P.C. and two cases under the Arms Ordinance at the instance of Lal Khan (acquitted accused). The continuous criminal litigation had led the complainant party to shift residence from village Kanian to village Dallowali in Sialkot district. In the circumstances the motive in this case was double‑edged. If the appellant or his family could be complained against of having motive to commit the murder, the complainant party can also be accused of having reasons and motive to falsely implicate the appellant or his family members.

17. It is clearly recorded in the F.I.R. that the shot fired by Muhammad Saleem appellant had struck the deceased on the chest. There is no mention that there was any injury on the back of chest. The summary of the facts noted in the inquest report also contains the assertion that the shot fired by Muhammad Saleem had struck the deceased on the chest. In that, also, there is no mention of any injury on the back of the deceased. Although both the eye witnesses including the complainant at the trial stated that the shot fired by Muhammad Saleem had struck the deceased on the back but that does not wipe out the contradiction of the account of sufferance of injury mentioned in the F.I.R. and the medical evidence. The explanation given by the complainant that he had made a supplementary statement after the recording of F.I.R., stands negated by the fact that even in the summary of facts noted in the, inquest report only those facts were noted which find mention in the FIR. If any supplementary statement had been made by the complainant immediately after lodging the FIR, as claimed by him, the same would have been mentioned in the summary of facts noted in the inquest report.

18. There is yet another contradiction of the ocular account by their medical evidence. In that, the. deceased was found to have suffered an injury on the wrist. The complainant did not state anything in that regard in the F.I.R.1B Although both the eye‑witnesses at the trial adverted to that fact yet in that,1 also they made contradictory statements, i.e., P.W.8 stated that after the I deceased had fallen on being hit by the shot fired by Muhammad Saleem, "all the accused resorted to firing and one of the shot hit the deceased on the arm near the wrist", while P.W.9 stated that after the deceased had been struck by the shot fired by Saleem appellant, the other accused also resorted to firing with their fire‑arms and the shot fired by one of them hit Khadim Hussain on the left wrist. The analysis of the statements made by the two brings out a clear picture that while according to P.W.8 the shot which had struck the deceased on left wrist had been fired by one out of the four accused, including Saleem while according to Safdar Hussain P.W.9 the said injury resulted from the shot fired by one of the remaining 3 accused i.e. excluding Saleem appellant.

19. The argument of learned counsel for the appellant that none of the eye‑witnesses appears to have witnessed the occurrence, also finds support from the evidence on record. In that, if P.W.9 had been there, or for that matter the eye‑witnesses who were named in the F.I.R. but were not produced at the trial, had been there, the complainant might not have made a mistake regarding the number and seats of injuries. The other aspect is that P.W.9 clearly stated that after the murder of Bashir they had shifted to village Dallowali in district Sialkot and were residing there since then. The statement made by P.W.8 that they had returned to village Kanian 15‑16 days prior to the occurrence, in the circumstances appears to be a fabricated story. If the P.Ws. were residing at Sialkot, they could not have been at the spot.

20. The presence of witnesses also stands ruled out from the fact that none of the articles which according to P.W.8 they were carrying at the time of occurrence, were found lying or scattered at the spot. The explanation given by him that people who had gathered there had taken those articles away, to say the least, is an unwholesome lie.

21. Apparently, report Exh.PK from the office of the Forensic Science, Laboratory connects the appellant with the commission of crime, in that, the empty taken into possession from the spot was found wedded with the rifle said to have been recovered from him after arrest but that again cannot be safely relied upon as there is no reliable and confidence inspiring evidence about the D collection of empty from the spot and recovery of rifle at the instance of the appellant.

22. Excepting the S.I. no other witness was examined at the trial to prove that any empty was recovered from the spot. The S.I. while preparing the inquest report had crossed X column No.23. The noting in column No.23 obviously is a later incorporation.. The fact of the empty having been found at the spot also does not find mention in the summary of facts noted in the inquest report.

23. The recovery of the rifle at the instance of the appellant becomes doubtful in view of the statement made by P.W.9 that the accused had been arrested on the following day of the occurrence. The Police had shown the arrest of the accused including the appellant on 6‑9‑1986. This, is in direct contradiction of the fact given out by P.W.9. Such being the situation the contention of learned counsel for the appellant gains importance that actually the accused had been arrested by the Police on the following day of the occurrence and the Investigating Officer after having been provided with a rifle had got prepared an empty and shown the same to have been collected from the spot, and recovery of rifle at the instance of the appellant on 17‑9‑1986. As a result of the above discussion and enunciation of the evidence, we are convinced that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. The appeal is, therefore, allowed and the appellant is acquitted. He shall be released forthwith if not required in any other case. N.H.Q./M‑270/L Appeal accepted