1994 PLP 1432 (MLD)

Muhammad Nawaz son of Suba, aged 22/23 years, was tried by the learned Additional Sessions Judge, Gujranwala, who vide his impugned judgment dated 16-5-1987 convicted and sentenced him under section 302, P.P.C. to undergo imprisonment for life and a fine of Rs.2,000 in default whereof to suffer one year R.I. He was also directed to pay a compensation of Rs.7,000 to the legal heirs of the deceased and in case of default in its payment to suffer R.I. for 6 months. The amount of compensation was directed to be recovered as arrears of land revenue. He was also extended the benefit of section 382-B, Cr.P.C. To assail his conviction and sentence the appellant has come up in appeal.

2. The prosecution case as unfolded in the F.I.R. Exh.PD recorded by Rana Bashir Ahmad, S.H.O. (P.W.13) on the statement of P.W.8 Islam Din at Police Station Naushehra Virkan, District Gujranwala on 18-10-1984 at 10-10 a.m. is to the effect that the complainant was resident of Mauza Manjwali and was a cultivator. He had land of Ghulam Bheek, Lamberdar on lease where a tubewell had been installed for cultivation of the land. The tubewell was out of order for the last few days and to remove the defect on the day of occurrence i.e. on 18-10-1984 at about 6-00 a.m. the complainant alongwith his-deceased brother Sultan Ahmad, nephew Abdul Rehman (P.W.12) and Abdul Sattar (P.W.9) had reached the tubewell, where Muhammad Azam P.WV. (given up) was already present. There Abdul Rashid and. Farzand Ali residents of the village after witnessing the deceased alongwith the witnesses present there, went towards the village. The tubewell was at a distance of 2 Killas from the village. Abdul Rashid and Farzand Ali had informed the appellant and acquitted co-accused Sabir that Sultan Ahmad etc. was present at the tubewell. At about 8-00 a.m. Muhammad Nawaz appellant armed with .12 bore gun and Sabir, acquitted co-accused armed with .12 bore gun reached on a mare. Muhammad Nawaz raised Lalkara that Sultan Ahmad deceased would not be spared as he was a prosecution witness in a murder assault case against him and his party members, as well as his family had opposed him in the elections. Muhammad Nawaz appellant fired at him with his gun which hit on the front side of his left thigh and on the testicles. The second fire was made by Sabir, acquitted co-accused which hit on the front side of his right thigh. Sultan Ahmad was injured and fell down. Thereafter the appellant and his acquitted co-accused fired in the air and while firing escaped towards the Phumma Sarai. The P.Ws. saved themselves. Sultan Ahmad was taken on -a tractor trolley to the Civil Hospital, Naushehra Virkan and on the way he succumbed to his injuries. The motive behind was that in the Local Council Elections the complainant had contested against Bashir Ahmad and was defeated and in the elections of the Chairman which was between Riayasat Ali of Phumma Sarai and Riaz Muhammad of Chuheywali, the complainant had opposed Riyasat Ali. Besides that, Sultan Ahmad deceased was injured in August, 1984 by Chairman Muhammad Nawaz etc. and the case was under investigation against them with the C.I.A. Staff, Gujranwala. The deceased was an eye-witness. Muhammad Nawaz and Sabir in conspiracy with Riyasat Ali, Chairman of Phumma Sarai and Ameer Khan, on their abetment and mutual consultation had murdered the deceased. Besides the complainant the occurrence was witnessed by Abdul Rehman (P.W.12), Abdul Sattar (P.W.9) and Muhammad Azam P.W. (given up). The complainant reached the police station leaving behind Shaukat Ali (P.W.5) and Abdul Sattar (P.W.9) to guard the dead body.

3. P.W. 13 Rana Bashir Ahmad, S.H.O. after recording F.I.R. Exh.PD reached the spot and secured blood-stained earth vide memo. Exh.PB. Muhammad Nawaz appellant was arrested by P.W.13 on 21-10-1984, who on 30-10-1984 led to the recovery of gun P.2 which was secured by him vide memo. Exh. PC. Appellant alongwith acquitted co-accused Sabir and Sanaullah were sent up for trial and a charge under section 302/34, P.P.C. was framed, to which they denied and claimed trial. Sanaullah was acquitted under section 265-K, Cr.P.C. whereas Sabir, co-accused was acquitted vide the impugned judgment. Riasat, Ameer, Abdul Rashid and Farzand Ali named in the F.I.R. who allegedly abetted the murder were neither challaned nor sent up for trial.

4. P.W.11 Dr. Muhammad Ramzan Pervaiz on 19-10-1984 at 8-00 a.m. conducted autopsy on the dead body of deceased Sultan Ahmad and found the following injuries on his person:

(1) Abrasion .75 c.m. x 5 c.m. on back and inner side of left fore-arm below elbow. (2) An abrasion 1.2 c.m. x 2 c.m. with blackening and burning surface on front of left thigh at upper end. (3) A wound of inlet 1.5 c.m. x 1.5 c.m. x 8.5 c.m. circular in shape with inverted burnt margin on front and inner side on left thigh about 7 c.m. below groin. (4) A wound of inlet 1.5 c.m. x' 1.5 c.m. x 11 c.m. circular in shape with inverted burnt margins on front and inner side of left thigh about 2 c.m. below injury No.3. ' (5) A wound of inlet 1.5 c.m. x 1.5 x 16 c.m. circular in shape with inverted black and burnt margins on front of left thigh about 4.5 c.m. below injury No.2. (6) A wound of inlet 1.5 c.m. x. 1.5 c.m. x 6 c.m. circular in shape with inverted black and burnt margins on front of left thigh below injury No.5. (7) 2 wounds of inlet circular in a shape 1.5 x 1.5 x 6 c.m. with black and burnt margins on front of left thigh. (8) A wound of inlet 2 x 2 c.m. x 14 c.m. circular in shape with black and burnt margins on front and outer side of left thigh about 1.5 c.m. below injury No.7. (9) A wound of inlet circular in shape 1.5 c.m. x 1.5 c.m. x 14 c.m. with black and burnt margins on outer side of left thigh at middle about 3 c.m. left to injury No.8. (10) A wound of inlet circular in shape 1.5 c.m. x 1.5 c.m. x 4 c.m. with black and burnt margins on outer side of left thigh about 2 c.m. below injury No.9. (11) A wound of outlet circular in shape 2.5 x 2.5 c.m. depth inter connected with injury No.8 with everted margins on back of left thigh at about middle. (12) A wound of outlet 2.2 c.m. x inter-connected with injury No.3 with everted margins on inner side of left thigh at upper part circular in shape. (13) A wound of outlet circular in shape 2 x 2 c.m: x inter-connected with injury No.4 on inner side of left thigh about 4 c.m. below injury No.12 with everted margins. (14) A wound of outlet 2 x 2 c.m. x inter-connected with injury No.5 circular in shape with everted margins on inner side of left thigh at upper end about 2 c.m. above and outside injury No.13. (15) A wound of inlet- 1.5 c.m. x 1.5 c.m. x 3.5 c.m. circular in shape with black and burnt inverted margins on left side of scrotum on front end at lower part. (16) A wound of inlet 1.2 c.m. x 1.2 c.m. x 3.5 c.m. circular in shape with black and burnt margins on right side of scrotum on front and lower part. (17) A wound of inlet 1 x 1 c.m. x 5 c.m. circular in shape with black and burnt inverted margins on inner side of right thigh at upper end. (18) A wound of inlet 1 x 1 c.m. x 5 c.m. circular in shape with black and burnt margins on inner side of right thigh about 5 c.m. below injury No.17. . (19) A wound of inlet 1.5 c.m. x 1.5 c.m. x q c.m. circular in shape with black and burnt inverted margins in front and inner side of right thigh at upper part about 5 c.m. below groin. (20) A wound of entry 1 x 1 x 7 c.m. circular in shape with black and burnt margins on front and outer side of right above middle. Injuries Nos.3, 4, 5 and 8 were` declared grievous and the rest were simple. All injuries were ante-mortem. Injury No.1 was by blunt weapon and the others were caused by fire-arm. In the opinion of the Doctor the death was caused due to shock and haemorrhage as a result of injuries Nos.3, 4, 5, 8, 15 and 16, which were sufficient to cause death in the ordinary course of nature. The time between injuries and death was half an hour, and between death and post mortem examination was about 24 hours.

5. The prosecution examined 13 P.Ws. in all to substantiate its case. Muhammad Nawaz appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him as well as the recovery of gun P.2. He stated that it was an un-witnessed occurrence. Sultan Ahmad deceased was injured by some unknown person during the darkness of night near the tubewell of Ghulam Bheek P.W. Various persons were named as accused on suspicion by the complainant party who bore grudge against the accused party for having lost two elections. The witnesses were interested and inimical towards him. In murder case of Ismail, his uncle Ameer and his son Nazir had appeared as witness against Islam Din complainant and Sultan Ahmad deceased, who were accused in that case. For the said reason he had been falsely implicated. He further stated that he was innocent. He had not produced evidence in defence. However, the appellant made statement under section 340(2), Cr.P.C. on oath and made almost the similar statement as under section 342, Cr.P.C.

6. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant. The ocular testimony on record as well as the motive were furnished by the statements of P.W.8 Islam Din complainant, P.W.9 Abdul Sattar and P.W.12 Abdul Rehman. P.W.8 Islam Din is brother of the deceased, P.W.9 Abdul Sattar is his first cousin whereas P.W.12 is son of the deceased. P.W.8 complainant narrated the facts as stated by him in the F.I.R. Exh. PD and P.Ws. 9 and 12 corroborated his statement. The gun P.2 recovered at the instance of appellant has no evidentiary value, as no empty was secured by the police from the spot. P.W.11 Dr. Muhammad Ramzan Pervaiz has stated about the medical aspect of the case.

7. I have heard the learned counsel for the parties and have perused the record. The learned counsel for the appellant has vehemently contended that it was an un-witnessed occurrence. The reasons advanced for the presence of the eye-witnesses at the relevant time do not appeal to reason. The ocular account is not in consonance with the medical evidence and the complainant had falsely implicated innocent persons w1`o were neither arrested nor challaned. Co -accused Sanaullah was acquitted under section 265-K, Cr.P.C., whereas the other co-accused Sabir was acq0ltted by the trial Court on the same evidence. There is no independent corroboration.

8. P.W.11 Dr. Muhammad Ramzan Pervaiz who conducted autopsy on the dead body of the deceased had found blackening around his injuries and the eye-witnesses have unanimously stated that they had witnessed the appellant alongwith the acquitted co-accused firing at the deceased from a distance of 24/25 feet. The blackening and burning could not be caused around the injuries from such a distance- The deceased was stated to be wearing Dhoti (Chader) at the relevant time, but no pellet mark, tattooing or charring was found on the Chader as well as by P.W.13 Rana Bashir Ahmad, S.H.O./I.O. who had prepared inquest report Exh.PG. P.Ws. 9 and 12 stated that they had not taken the breakfast when they left for the tubewell, whereas P.W.11 Dr. Muhammad Ramzan Pervaiz during cross-examination stated that the condition of digested food as found in this case could be 3 hours after taking the meal.

9. P.Ws. 8, 9 and 12 state) that they had reached the place of occurrence (tubewell) to remove the mechanical defect, whereas Ghulam Bheek (P.W.10), owner of the tubewell, stated that the tubewell was operated by himself or some appointed person and if there would have been any defect, it was to be removed by themselves. Abdul Rehman (P.W.12) and Abdul Sattar (P.W.9) son and first cousin of -the deceased respectively stated that there was no defect in the tubewell on the relevant day and they also denied the fact that they had stated before the police that it was, out of order for the last two days i.e. earlier to the day of occurrence and they had reached the place of occurrence to repair it. Their statements were duly confronted.

10. The learned counsel for the appellant has vehemently contended that the reasons and cause of presence of P.Ws. at the relevant time had not been properly explained and they had no cause whatsoever to be present at the tubewell at the relevant time. Complainant Islam D' (P.W.8) had named 7 accused in the F.I.R. Exh.P.D. The police had not challaned Riayasat Ali, Ameer, Abdul Rashid and Fafzand Ali nor they were arrested, whereas co -accused Sanaullah was acquitted under section 265-K, Cr.P.C. while Sabir co -accused was acquitted by the trial Court vide the impugned judgment. P.Ws. 8, 9 and 10 had specifically stated that the deceased was fired at one shot each by the appellant and Sabir, who was acquitted. The motive, if any, was against Islam Din (P.W.8) and not against the deceased. No direct motive was against the deceased. The eye-witnesses are closely related to the deceased, the ocular account is not in consonance with the medical evidence and there is no independent corroboration of the statements of eye-witnesses.

11. Pursuant to the above discussion, I am of the view that the case against the appellant is not free from doubt and giving him benefit of doubt, I acquit him of the charge. The appellant is on bail, his bail bonds are discharged. N.H.Q./M-1529/L Appeal accepted.