2008 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

Mr. M. Abdul Manan, Advocate, learned counsel for the complainant, is absent. No application seeking adjournment has been received on his behalf. On 10-7-2006 within his presence, the application of the petitioners/ appellants seeking suspension of sentence and their release on bail during the pendency of the appeal was dismissed and main appeal was fixed for hearing for today. In the circumstances, I have no option but to proceed with the matter.

2. Mamdan Khan filed private complaint against Ameer Bakhsh alias Meeru (who remained absconder and could not be tried), his brothers Hussain Bakhsh, Pir' Bakhsh and Bashir Ahmad son of Khuda Bakhsh for offences under section 302/34, P.P.C. Vide judgment, dated 2-2-2005, Mr. Muhammad Kaleem Sheikh, learned Additional Sessions Judge, Rahimyar Khan, convicted Hussain Bakhsh, Pir Bakhsh and Bashir Ahmad for offences under section 302(c)/34, P.P.C. Each of them was sentenced to ten years' R.I. Each of the convicts was also directed to pay compensation Rs.25,000 to the legal heirs of deceased Iqbal under section 544-A, Cr.P.C. In default in payment thereof each of them was to suffer S.I. for six months. This appeal is directed by them against their aforesaid conviction and sentence.

3. Initially F.I.R. No.36 (Exh. C. W .1/A) was registered at Police Station Abadpur on 15-2-2000 for offences under section 302/34, P.P.C. on the statement of Mamdan Khan complainant. During investigation, the appellants were found to be innocent by different Investigating Officers. Hence, Mamdan Khan who was not satisfied with the investigation filed private complaint on 2-4-2002. However, the facts given in complaint are verbatim copy of the F.I.R. According to prosecution case, Jamil Ahmad Gopang was in possession of State land since long, which was being occupied by the complainant and his son Iqbal Ahmad deceased as tenants. On 15-2-2002 at 9/10-00 a. m. the complainant, his deceased son Iqbal Ahmad, Hazoor Bakhsh and Malooki Khan went to their agricultural field, while they were near the pond (Diggi) of Jamil Ahmad Khan, Amir Bakhsh alias Meeru armed with .12 bore gun, Hussain Bakhsh armed with .12 bore gun, Pir Bakhsh armed with rifle and Bashir Ahmad armed with rifle emerged. The accused raised Lalkara that they had asked the complainant party to stop coming to the agricultural fields. They added that it would be decided on that day whether the land in dispute would remain in possession of Jamil Ahmad Gopang or in possession of the accused. After raising Lalkara, Amir Bakhsh asked his companions Bashir Ahmad and Pir Bakhsh to catch hold Iqbal Ahmad. Pir Bakhsh and Bashir Ahmad, appellants, caught hold of right arm and left arm of Iqbal Ahmad respectively. Thereafter Amir Bakhsh fired at Iqbal Ahmad which hit on the chest and Iqbal fell down. He died on the spot. Hussain Bakhsh threatened the complainant party with dire consequences in case they followed the accused. The motive behind the occurrence was that the accused had been making efforts to take possession of the land which was successfully defended by the complainant party previously.

4. After registration of case, Riaz-ud-Din Gilani, Inspector/S.H.O. (C.W.1), reached the spot and conducted necessary investigation. He collected blood-stained earth from the spot, prepared inquest report, rough site plan and sent the dead body to the mortuary for post-mortem examination.

5. The appellants and their co-accused Amir Bakhsh were summoned to face trial in complaint case vide order, dated 14-6-2002. Amir Bakhsh was declared proclaimed offender. However, charge was framed against the appellants on 3-10-2003. As the appellants denied the charge and claimed to be tried; hence the trial commenced.

6. During trial, prosecution produced four witnesses in support of its case. Mamdan Khan father of the deceased and Hazoor Bakhsh appeared as P.W.1 and P.W.2. They furnished the ocular account. Their statements are in line with the story given in the complaint. In addition to that, Mamdan Khan also stated about the motive behind the occurrence. Ghulanu Farid/P.W.3 stated about the identification of the dead body. Dr. Tahir Mahmood/P.W.4 stated that on 16-2-2000 he conducted post-mortem examination on the, dead body of Iqbal Ahmad. He observed one lacerated circular wound measuring 2 x 2 c.m. in diameter in centre of anterior surface of chest and mid of sternum margin of wound inverted and blackening around the wound was present. According to his opinion, Iqbal Ahmad lost his life within ten minutes of receipt of injury which was caused by fire-arm from a close range. According to him, the time which elapsed between death and post-mortem examination was within twenty-four hours. During cross-examination, he stated that there was delay of about twenty-four hours in the conduct of post-mortem examination and there was no exit wound. He explained that the injury might have been caused from a distance of 3/4 feet. He admitted that there were chances in the given circumstances that the persons who were holding the deceased could have received injuries.

7. After closure of prosecution evidence, statement of 'Riaz-ud-Din Gillani, Inspector/S.H.O. who had conducted the investigation, was recorded as C. W.1. He stated in examination-in-chief that according to his investigation, the appellants were found to be innocent and case filed was sent to D.S.P. concerned. Statement of Mirza Muhammad Ameer Baig, D.S.P./S.D.P.O., was also recorded as C.W.2. He stated that on 20-4-2000 filed of the case was handed over to him for verification of the investigation and he recorded innocence of the appellants and directed the S.H.O. to get them discharged from the case. However, according to him, he came to this conclusion when Jameel Ahmad, who had appeared before him, along with the complainant, did not take oath against the accused.

8. In their statements recorded under section 342, Cr.P.C. the appellants pleaded innocence and stated that the witnesses were inter se related and were inimical to them. They had lodged some F.I.Rs. against the complainant party previously, which were cancelled. They further stated that civil and criminal litigation existed between the parties. According to them Iqbal Ahmad deceased had illicit relationship with one Mst. Sukhi Mai who was real aunt of the deceased. So her son Muhammad Hussain caused murder of Iqbal Ahmad after declaring him "Kala". They further stated that they were roped in a false case due to existing enmity and were found innocent by the S.H.O. as well as the S.D.P.O.

9. Learned counsel for the appellants submits that the appellants were innocent and they were involved in this case due to previous enmity and ill-will which existed between the parties; that no overt act is attributed to Hussain Bakhsh appellant, while it was most unlikely that Pir Bakhsh and Bashir Ahmad could hold Iqbal Ahmad while he was fired upon by Amir Bakhsh; that all the appellants were found innocent by the S.H.O. whose investigation was verified by the D.S.P. and both of them appeared before the learned trial Court as C.Ws.1 and 2.

10. Conversely, the learned counsel appearing on behalf of the State have argued that it was a daylight occurrence; that P.W. Hazoor Bakhsh was not related to the deceased and was an independent witness; that the ocular account was fully supported by the medical evidence; and that the factum of innocence of the appellants was based only on police opinion which was of no value after the recording of evidence.

11. I have heard the learned counsel for the parties and have also gone through the record of the case.

12. Undeniably, Hussain Bakhsh and Pir Bakhsh are real brother of principal accused Amir Bakhsh who had caused the fatal shot, while Bashir Ahmad appellant is Mammonzad, son of maternal-uncle. All the appellants were shown to be armed with fire-arms yet they did not cause a single fire. No role was attributed to Hussain Bakhsh except that while leaving the spot; he threatened the complainant party with dire consequences in case he and other accused were followed. Pir Bakhsh and Bashir Ahmad appellants were saddled with the responsibility of holding the right and left arms of the deceased but it is not explained in the F.I.R. whether at the time of holding both the appellants handed over their weapons to somebody else or laid the same on the ground. Even otherwise, all the four accused, according to prosecution case, were armed with fire-arms; hence, there was no need to overpower the deceased first and then cause fire at him. All of them could easily have fired and caused death if they so intended. During investigation, no recovery was effected at their instance. The prosecution case as against the appellants is not supported by any corroboratory evidence, as according to medical evidence, the deceased had received one single fire-arm injury on his chest, which, according to P.Ws., was caused by Amir Bakhsh absconding accused. It is also in evidence that previous enmity and hostility existed between the parties. In the above-noted circumstances, the possibility that the appellants were roped in this case due to their relationship with Amir Bakhsh cannot be ruled out.

13. As far as motive which has been set down in complaint is concerned,' it is not supported by any independent evidence and in any case-the motive as alleged was available against the complainant as well as his deceased son but the complainant did not receive even a scratch at the hands of the accused. The S.H.O. who had conducted the investigation of the case appeared before the learned trial Court as C.W. and stated on oath about the innocence of the appellants. It is true that police opinion is not binding upon the Court but at the same it cannot be thrown to the winds.

14. The upshot of the whole discussion is that in my considered opinion, the prosecution case against the appellants is not free from doubt. Hence, I allow this appeal and set aside the judgment passed by the learned trial Court to the extent of the appellants. They are acquitted of all the charges and would be released forthwith, if not required in any other case.

15. Needless to say that the observations made in this judgment would, not benefit the absconding accused Amir Bakhsh alias Meeru whose case would be decided on it own merits. H.B.T./H-6/L Appeal allowed.