EDIT BY ZEESHAN YAQOOB (PLP)

(2) A lacerated wound 3/4 c.m x 3/4 c.m. with everted margins on front of middle part of neck. Wound is covered with clotted blood. (3) A lacerated wound 1/2 c.m. x 3/4 c.m. with everted margins on the right side of neck 2 c.m. away from injury No.2. (4) A lacerated wound 3/4 c.m. x 1/4 c.m. with everted margin on the front upper part of right chest just above the right sterno clavical joint. (5) A lacerated wound 3/4 c.m. x ? c.m. with everted margins on front of right upper chest on front of the clavical bone which is fractured 1‑1/2 c.m. below injury No.4. (6) A lacerated wound 3/4 c.m. x 3/4 c.m. with exerted margins on front of right upper chest 2‑1/2 c.m. outwards from injury No.4. (7) A lacerated wound 1 c.m. x 3/4 c.m. with everted margins on the right side of upper chest just below the right clavical and 3 c.m. below injury No.5. (8) A lacerated wound 1 c.m. x 3/4 c.m. with everted margins on the right side of neck 4 c.m. away from the midline and 3‑1/2 c.m. obliquely upward and outward from injury No.4. As a result of post‑mortem examination he found that stomach was healthy and contained about 7/8 ounces of semi‑digested food material. In his opinion cause of death was excessive haemorrhage and shock resulting from injury. No.1 inflicted by fire arm weapon which was ante‑mortem and was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 to 8 were also ante‑mortem and were all exit wounds of injury No.

1. Injury No. l was fire arm wound of entrance, whereas injuries Nos. 2 to 8 were exit to the said injury. He produced post‑mortem examination report Exh. P/F and diagram Exh. P/F/l. Muhammad Ishaque P.W.8 is the complainant and has corroborated his version appearing in complaint Exh. P/A/1. Muhammad P.W.9 is an eye‑witness of this occurrence who has corroborated the version of complainant Muhammad Ishaque. Ghulam Rasool P.W.1C is witness of recovery of guns from accused Muhammad Boota as well as Ahsan Akhtar Aias Sani. P.W.11 Talib Hussain is the, Witness regarding she conspiracy and abetment of the accused for the commission of this offence. Aqeel Ahmad, MHC, P.W.12 deposed that he was given two sealed parcels containing blood‑stained earth and blood?stained Softi (pair of Chappal) by Ahmad Adnan S.I. for keeping in Malkhana on 24‑3‑1992. He further deposed that he handed over the said parcels to Altaf Hussain constable for onward transmission to the Office of Chemical Examiner. He further 9eposed that he had been working as Moharrir constable at p.p. Dingroo in February, 1991 when Ahmad Adnan S.I. was posted as Incharge over there. He was fully acquainted with the hand‑writing and signature of Ahmad Adnan S.I. He produced the complaint Exh.P/A/1 and recovery memos. Exhs.P/B, P/C, P/D, P/I and P/J which were in the hands of Ahmad Adnan, S.I. He also brought on record site plan without scale Exh. P/K and site plans Exh. P/E and Exh. P/E/1 prepared by the draftsman and containing notes in red ink of Ahmad Adnan, S.I. He also brought on record statement of injury Exh. P/G and inquest report Exh. P/H prepared by the said Investigating Officer. The learned D.D.A. produced reports of Chemical Examiner Exh. P/M and report of Serologist Exh. P/N and after giving up the remaining P. Ws. closed the case for prosecution vide his statement dated 17‑7‑1993.

6. When examined under section 342, Cr.P.C. Muhammad Boota accused denied the prosecution version arid stated that he had been implicated in this case falsely. He further stated that it was a blind murder which took place at the late hours of the night. He further produced photo copy of birth entry Mark‑A and stated that neither he would produce any other defence evidence nor would examine himself under section 340(2), Cr.P.C. The other accused also denied the prosecution version and none of them neither produced any defence evidence nor examined himself under section. 340(2), Cr.P.C.

7. After going through the evidence produced by the prosecution the trial Court while acquitting the other accused convicted the appellant vide judgment under appeal.

8. Alongwith this appeal, Criminal Revision No. 538 of 1998 against acquittal of Sabir Hussain, Mukhtar Ahmad alias Mahi, Bashir Ahmad alias Charri, Nazir Ahmad alias Bagga and Ahsan Akhtar alias Sani and Criminal Revision No. 531 of 1993 for the enhancement of sentence awarded to Muhammad Boota appellant have also been filed. As the instant appeal and criminal revisions arise out of the same judgment so these are being disposed of by this single judgment.

9. Arguments have been heard and record perused.

10. It is submitted by the learned counsel for the appellant that the trial Court has not believed the ocular statement of P.W.8 Muhammad Ishaque (complainant) and Muhammad Sharif (P.W.9), that similarly trial Court has not believed statement of P.W.10 Ghulam Rasool regarding recovery of, gun at the instance of appellant, that the trial Court has passed order of conviction simply relying upon evidence regarding motive as well as medical evidence. He contended that the trial Court while discussing medical evidence in para. No. 33 of the impugned judgment has held that there was no evidence on record to show that the deceased was fasting on the day of occurrence, and thus, held that the deceased had taken some food prior to Iftari. He argued that this observation of the learned trial Judge is falsified from record as it is admitted by P.W.8 Muhammad Ishaque that he as well as deceased Muhammad Rafique and others were fasting on the day of occurrence as such question of taking some food by the deceased prior to Iftari does not arise. He argued that as per prosecution version occurrence took place just after 5 minutes of Iftari and if this assertion of prosecution is admitted correct then how could 7/8 ounces of semi digested food be found in the stomach of the deceased and this fact alone is sufficient to make prosecution version highly doubtful regarding the time of occurrence. He further urged that trial Court has believed the motive aspect of prosecution version without realising that it was not available against the deceased, as Mst. Yasmin sister of accused/appellant was not` abducted by the deceased but his brother Nazir Hussain who was also there. He submitted that no order of conviction can be passed solely on the basis of evidence of motive, as motive is double‑edged weapon which may be sufficient reasons for commission of offence by the accused and it can equally serve as a reason for the false involvement of the accused in the crime, and placed reliance upon Muhammad Ashraf and others v. The State (1998 SCMR 279), Ismail and others v. The State (1987 PCr.LJ 1390), Habib‑ur‑Rehman etc. v. The State (1996 PCr.LJ 870). The State v. Muhammad Sharif and 3 others (1995 SCMR 635). He further submitted that motive alone cannot be basis for conviction and relied upon Mst. Hajul v. The State PLD 1962 (W.P.) Karachi 532.). He thus submitted that prosecution has failed to bring home guilt to the accused beyond doubt and the order of conviction passed by the trial Court is not sustainable and be set aside.

11. Conversely learned counsel for the State has supported the judgment under appeal. Learned counsel for the complainant has submitted that trial Court was not justified in acquitting the accused/respondents Nos. l to 5 (in Criminal Revision No.531 of 1993) and awarding lesser punishment to the accused/appellant. He, thus, submitted that both the criminal revisions be accepted.

12. Now let us analyse and see if the prosecution has succeeded in bringing home guilt to the accused or not. Prosecution case rests upon ocular account of Muhammad Ishaque (P.W.8) and Muhammad Sharif (P.W.9) which has not been believed by the trial Court, as is evident from paragraph No.31 of the impugned judgment. It further consists of evidence of recovery which has come on record through P.W.10 Ghulam Rasool. This has not been believed, as is evident from paragraph No. 34 of the impugned judgment. The trial Court has mainly passed the order of conviction relying upon medical evidence as well as that of motive as discussed in paras. Nos.32 and 35 of the impugned judgment. So far as medical evidence is concerned, the stand of trial Court is that deceased was not fasting at the time of occurrence and as such he had taken food prior to occurrence. The trial Court, it appears, has not gone through the evidence minutely, otherwise such glaring discrepancy could have not occurred. It is categorically admitted by P.W.8 that he alongwith deceased were fasting on the day of occurrence, that they had taken rice, mutton, fruit etc. at the time of Iftari. Now if the deceased had taken these items of food just at the time of Iftari and was done to death after 5 minutes how semi‑digested food could be found in his stomach, as per post‑mortem examination report Exh. P/F. The presence of 7/8 ounces of semi‑digested food in the stomach of deceased clearly proves that he was not done to death after Iftari as alleged by the prosecution. Thus, medical evidence does not come to the rescue of prosecution and it, on the other hand, makes the B prosecution case further doubtful. As discussed above, motive is double‑edged weapon, and while it may be a sufficient reason for the commission of offence by the accused, it can equally serve as a reason for the false involvement of the accused in a case. It has come on record through the statement of complainant Muhammad Ishaque (P.W.8) that enmity existed between the parties. Thus, possibility cannot be ruled out. that instant motive has been concocted to implicate the appellant in this case falsely. Even otherwise it does not stand to reason that when Nazir Hussain, who abducted the sister of accused was present and available, why he was not made the target and why the deceased was done to death. Thus, motive part of prosecution story does not ring true and does not appeal to reason.

13. The upshot of above discussion is that prosecution has failed to prove its case beyond doubt. Accordingly appeal is accepted, impugned conviction and sentence is set aside and appellant is hereby acquitted. He is ordered to be released forthwith if not required in any other case.

14. For the reasons discussed above both the Criminal Revisions Nos. 531 of 1993 and 538 of 1993 fail and are hereby dismissed. N.H.Q./M‑1164/L?????? Appeal accepted.