1999 PLP 370 (MLD)

This appeal is directed against the conviction and sentence dated 3-1-1995 recorded by learned Assistant. Sessions Judge, Tando Allahyar convicting the appellants under section 324/34, P.P.C. and sentencing them to R.I. for seven years each and to pay a fine of Rs.10,000 each or in default of payment of fine to suffer further R.I. for one year. He also convicted the appellants under section 504 and sentenced them to a fine of Rs.5,000 or in default of payment of fine to suffer R.I. for six months. Prosecution case in brief is that on 17-4-1990 at about 11.00 a.m. complainant Ghulam Rasool, his brother P.W. Ghulam Nabi and P.Ws. Muhammad Ayub as well as Mujeeb were thrashing wheat crop on the lands purchased by complainant from Chaudhry Ghulam Rasool in year 1968 with whom his relations were not cordial when the appellants entered upon the lands. While appellant Abdul Rauf was armed with a rifle; appellant Muhammad Ayub was carrying a hatchet. It is said that both the appellants hurled abuses to the complainant party and threatened them not to thrash the crop but the complainant and P.W. Ghulam Nabi resisted whereupon appellant Abdul Rauf fired from his rifle at Ghulam Nabi who. received a fire arm injury on his back and started bleeding. On account of fear complainant party did not approach the appellants who left the scene alongwith their respective weapons. Leaving the witnesses to take care of the injured, complainant went to Tando Allahyar to inform his nekmard Amjad Khan who advised him to lodge the report with police which was actual lodged at Police Post Umer Sand at 6-55 p.m., the same day. A.S.I.P. Muhammad Achar who recorded the F.I.R. in the daily station diary took up the investigation referred the injured to Medical Officer Tando Allahyar for examination and certificate and inspected the place of incident in presence of mashirs Chetan and Muhammad Hassan. After the arrest of the appellants and on completion of investigation they were brought to trial. 3 In support of their case prosecution examined complainant Ghulam Rasool P.W.1, Muhammad Ayub P.W.2, mashir Chetan P.W.3, Ghulam Nabi P.W.4 and Dr. Bashir Ahmed P.W.5, Surprisingly Investigation Officer was not examined at the trial without any apparent justification or sufficient reason.

4. In their statements under section 342, Cr.P.C. appellants denied the allegations against them and stated that witnesses have deposed against them due to enmity and in order to usurp their property. They, however; did not adduce any evidence nor appeared as their own witnesses.

5. On assessment of the material evidence on record, learned trial Court found the appellants guilty of the charge and convicted and sentenced them as stated above.

6. With the assistance of the learned counsel for the appellants, I have gone through the relevant evidence. Medical Officer Dr. Bashir Ahmed or examination of the injured noticed a lacerated wound on back of chest transversely 12 c.m. x 3 c.m. x muscle deep. Injury appeared to be simple in nature and Y caused by a fire-arm like a rifle. It was about one hour old at the time of examination, but the Medical Officer avoided to admit the time of arrival as well as examination of the injured in the hospital. He admitted that he had not recorded the time of arrival and examination of the victim but conceded that he was supposed to mention such time in the medico-legal certificate. He professed to have 30 years of service experience at his credit but he deliberately avoided to admit whether the injured was conscious or n-t when produced before him. He appeared to have written the time of examination in the medico-legal certificate but scored off the same with an ulterior motive. He, however, denied suggestions made to him during the course of cross-examination to reflect his mala fides.

7. No doubt, complainant Ghulam Rasool and injured Ghulam Nabi have implicated the appellant No.1 with the act of firing on the injured with intention to commit murder, their evidence does not inspire much confidence for a number of reasons. In the first instance they have admitted long-standing enmity with the appellants over the lands and secondly, there is no independent corroboration of their version. Furthermore, their evidence is not fully corroborated by the medical evidence and it is Lather contradicted in many aspects. Even the F.I.R. lodged at the Police Post about 1-1/2 miles away from the place of incident after a delay of more than seven hours speaks volumes for itself and the possibility of falsely roping the appellants cannot be ruled out in the peculiar circumstances.

8. As to the long standing enmity between the parties, Ghulam Rasool himself admitted that "we have previous litigation on landed property with the present accused." He further stated that "the accused had attacked us due to previous enmity and litigation over the landed property".

9. With regard to injured Ghulam Nabi he admitted the suggestion that P.W. Ghulam Nabi is resident of District Jhang. Surprisingly Ghulam Nabi has been shown to be son of Muhammad Farooq in the medico-.legal report, hand written by the Medical Officer where as according to the witness himself as well as complainant they are sons of Muhammad Fazil. This glaring discrepancy with regard to the parentage of the injured star witness was not explained by the prosecution. The confusion could have been possibly averted and verified by the Investigating Officer who for reasons best known to the prosecution was not examined at the trial. The conduct of the Medical Officer in not mentioning, the time of examination is against not above board. According to complainant Ghulam Rasool injured was taken to the hospital at 5.00 p.m. while as per medical evidence the injury was about one hour old. Allowing a reasonable margin of time for medical expert on either side the tine of commission of crime at 11.30 a.m. by no stretch of reasoning can be reconciled with the tine suggested by Dr. Bashir Ahmed.

10. There is another aspect of the case. According to mashir Chetan the Mashirnamas of wardat, injuries and arrest of the appellants were prepared at the police station on one and the same day when according to the memo of arrest appellants are shown to be arrested on 22-4-1990 where as the incident allegedly took place on 17-4-1990. Be that as it may, non-examination of the Investigating Officer from whom the appellants were entitled to put various important questions touching the merits of the truth of the prosecution version is highly fatal. By reason of his non-examination even the arrest of the appellants on a specified date and in a particular manner cannot be said to have been established. It may be pertinent to point out that mashir Chetan supported the prosecution case only with regard to the arrest of appellant Abdul Rauf, but his further admission that all the Mashirnamas were signed by him on the one and the same day at about 11.00 to 12.00 noon and that such Mashirnamas were prepared at Police Station does not improve the prosecution case either.

11. Cumulative effect of the aforesaid discrepancies, contradictions, improbabilities and mysterious circumstances give rise to reasonable and legitimate inference that the incident did not take place in the manner as stated. Admittedly, no part has been assigned to appellant Muhammad Ayub in the commission of the crime and no crime weapon was recovered at the instance of appellant Abdul Rauf. It was in these circumstances that coincidentally I had C suspended the sentence of both the appellants on their application vide order dated 20-3-1995. Refer 1991 PCr.LJ 1341 and 1992 PCr.LJ 2033.

12. For the aforesaid reasons even the State counsel has declined to support the prosecution case and fairly conceded that the case of the appellants is not free from a reasonable doubt. I would, therefore, allow the appeal and set aside conviction and sentence. H.B.T./A-155/K Appeal allowed.