2016 PLP 128 (YLRN)

ASLAM JAVED MINHAS, J.

This judgment shall dispose of Criminal Appeal No.208 of 2009 titled Khizar Hayat v. The State and another, Criminal Appeal No.184 of 2009 titled Allah Buksh v. Muhammad Zafar etc. and Criminal Revision No.81 of 2009 titled Allah Buksh v. Khizar Hayat etc. as all are outcome of the same judgment.

2. The appellant, namely Khizar Hayat and Ghulam Mustafa, along with their co-accused were tried by the learned Additional Sessions Judge, Mailsi, in a case FIR No.273/08 dated 01.06.2008, under sections 302/34, P.P.C. registered at Police Station Mitru, Tehsil Mailsi, District Vehari, and vide judgment dated 25.02.2009, both were convicted and sentenced under section 302(b)/34, P.P.C. to imprisonment for life along with compensation of Rs.50,000/- to legal heirs of deceased recovereable as arrears of land revenue, in default of which to further undergo S.1. for six months. They were also extended the benefit of section 382-B, Cr.P.C.

3. The relevant facts for the disposal of this appeal as per complaint Exh.PE, FIR Exh.PD are that complainant, on 01.06.2008 after Maghrab Prayer was coming back to his house, when he reached near the house of his nephew Qamar Hussain, he saw that accused Khizar Hayat, Ghulam Mustafa, Zakir alias Punnu and Abdul Haq, all armed with pistols, were entering into the house of his nephew. He also reached behind them, he saw that accused Abdul Haq raised lalkara and said to catch hold Muhammad Amin (brother of the complainant) and kill him, who was lying there on a cot, in the meanwhile, accused Abdul Haq caught hold from arms of his brother whereas Zakir caught hold from his legs. Accused Khizar Hayat fired at thigh whereas accused Ghulam Mustafa fired at head of Muhammad Amin. On hue and cry, PWs came there and witnessed the occurrence. On seeing the PWs, accused fled away from the place of occurrence after raising weapons.

4. Motive behind the occurrence was that on 25.05.2008 there was some quarrel took place between Khizar Hayat and Muhammad Amin (brother of the complainant) due to taking back sewing machine and gas cylinder of Muhammad Amin, on which, accused Khizar Hayat and Ghulam Mustafa put off Qamiz of deceased Muhammad Amin and snatched Rs.22000/- and mobile phone and alleged that Muhammad Amin had teased their sister and at that time, Muhammad Amin called them "Begairat", on which, Muhammad Zafar extended threat to murder him.

5. On the day of occurrence, at evening time, when complainant with PW Abdul Razzaq were passing near cattle-shed of accused Muhammad Zafar, they heard that accused Zafar was asking Zakir accused, whenever Muhammad Amin came back, murdered him today and then he will control the situation. All the accused on the instigation of accused Zakar have injured Muhammad Amin, who succumbed to the injuries.

6. After registration of the case, the investigation was conducted and thereafter the challan was submitted in the trial court. The learned trial court framed the charge on 19.11.2008 which was denied by the accused and they claimed trial.

7. To prove the guilt of the accused, the prosecution examined as many as eleven witnesses during the trial. Abid Mahmood 1208/C appeared as PW-1 and deposed that on 01.06.2008 he joined investigation with I.O., who handed over him dead body of deceased Muhammad Amin for postmortem examination and after postmortem, Medical Officer handed over him postmortem report No.10/08 with last worn clothes etc, which were handed over by him to I.O. on 02.06.2008, which I.O. took into possession vide recovery memo Ex.PE and then he along with PWs attested the same. PW-2 Dr. Jam Muhammad Irshad, Medical Officer deposed that on 02.06.2008 at 02:00 a.m. he conducted postmortem of deceased Muhammad Amin and found following injuries:- Injury No.1:--There was a lacerated wound measuring 8 x 1/2 c.m. seated on front of right aural Pinna, wound was circular in shape and was through and through; on front of ear (right) margin of wound were irregular and on back of said ear margins were also irregular and edges on front were inverted and on back edges were averted. Blood clots were present on entire aural Pinna. Even in internal cavity of said aural Pinna. On front wound was entrance and on back, wound was exit. Injury No.2:- There was lacerated wound measuring 1-1/4 x 1-1/4 c.m. going deep seated on inner aspect of left thigh. Eighteen centimeter above the left knee joint. Wound was circular in shape, blackening and slight burning. On the margin of wound were present. Margins of wound were irregular. Edges of wound were inverted. Blood clots present in field of wound. This wound was entrance wound. Shalwar was fully torn and was wet with blood. There was a corresponding wound measuring 2-1/2 x 2 cm. seated on outer aspect of left thigh. 13-1/2 c.m. above the left knee joint. Wound was in oval shape. Margins of wound were roughened. Edges of wound were averted. Blood clots were present in field of wound Some bony pieces and separated muscle fiber were present on the margin of wound. This wound was exit wound. Both the wounds (entrance and exit) were tracked with each other. On dissection of thigh (left) soft tissue during course of bullet found burnt, and black. Shaft of left femur bone found fractured and divided in pieces at site of wound. During dissection four metallic pieces of bullet found embedded in musculature recovered placed in glass bottle, sealed signed and stamped and handed over to police. Femoral vessel found ruptured. Description of rest of organs was given in their appropriate forum.

8. Medical Officer opined that cause of death was shock resulted by hamorrhage (external and internal) and damage to femoral of left thigh. Both the injuries were ante-mortem inflicted by firearm weapon and sufficient to cause.death in ordinary course of nature. Probable time between injury and death was half to one hour approximately and. between death and postmortem was 5/6 hours approximately.

9. Muhammad Zahid Aslam 1185/C appeared as PW-3 and deposed that on 30.07.2008 Moharrar of P.S. Mitru handed over two sealed parcels to him, which he deposited on 31.07.2008 to the office of Chemical Examiner and FSL, Lahore. PW-4 Mumtaz Hussain 844/HC deposed that on 01.06.2008 he chalked out formal FIR Exh.PD. The complainant Allah Buksh PW-5 supported the prosecution version as narrated by him in the complaint Exh.PE. PW-6 Muhammad Ayyub eye -witness of the occurrence also corroborated the prosecution story. Ijaz Latif (PW-7) Draftsman prepared the site plan of the place of occurrence through memo Exh.PK, Exh.PK/1, Exh.PK/2. Abdul Razzaq appeared as PW-8 and deposed that on the day of occurrence, prior to Maghrab Azan, he along with Allah Buksh complainant heard Zafar accused, who was saying Zakir accused to murder Muhammad Amin and later on he will manage the matter. PW-9 Muhammad Iqbal identified the dead body of deceased Muhammad Amin at the time of postmortem and in his presence, I.O. took into possession, last worn clothes of deceased, vide recovery memo Ex.PA, which was signed by him with PW Ghulam Yasin. PW-10 Muhammad Mansha 817/C deposed that on 29.07.2008 Abdul Khaliq S.I. handed over to him two sealed parcel of blood stained earth and empties, which he kept the same in Malkhana and then on 30.07.2008 handed over the same to Muhammad Aslam 1185/C for its onward transmission to the office of Chemical Examiner and FSL, Lahore, Abdul Khaliq S.I. appeared as PW-11 and deposed that on 01.06.2008 he was posted at Police Chowki Garhamor and present at toll tax 102/WB, where complainant met him, got recorded his statement Exh.PE which was written by him, on which, he prepared Tahreer Istaghasa and sent to police station through constable for registration of case, I.O. along with police officials visited the place of occurrence, inspected the dead body of deceased Muhammad Amin, who was lying in the courtyard of the house of Qamar Hussain (maternal nephew of deceased), prepared injury statement Exh.PB/1, site plan Exh.PL, took into possession blood stained earth, crime empties and recorded the statements of PWs under section 161, Cr.P.C. He stated that on 19.06.2008, he obtained physical remand of accused Khizar Hayat and Ghulam Mustafa, on the disclosure of Khizar Hayyat and Ghulam Mustafa recovered pistol .30 bore from their houses in presence of witnesses, which were taken into possession vide recovery memo Exh.PH and Exh.P.J. On 30.06.2007 he sent accused Khizar Hayat and Ghulam Mustafa (appellants) to judicial lock up by declaring them guilty. He deleted sections 109/148/149, P.P.C. and added section 34 P.P.C. His investigation was verified by Muhammad Rashid Inspector/SHO and Ghulam Abbas DSP. He prepared challan against the accused persons.

10. After closure of the prosecution evidence, the statements of the accused/appellant was recorded under section 342, Cr.P.C. He denied the allegation and claimed his innocence and false involvement. In reply to a question "why this case has been registered and why the PWs have deposed against you", the reply given by the accused Khizar Hayat is as under: "The PWs have falsely implicated me in this case; the PWs are interested witnesses. All the PWs were not present. The occurrence is unwitnessed one. Prosecution has failed to produce material witnesses Mst. Nooran, Qamar Hussain and Rabia Bibi residents of alleged place of occurrence. I have been falsely implicated. Recovery is fake one. Motive is also concocted one and not proved by any independent evidence. I have been involved in this case as a scapegoat due to enmity?"

11. The trial culminated into conviction and sentence of the appellants as mentioned above. The appellants have challenged their conviction and sentence through Criminal Appeal No.208 of 2009 as mentioned above while Allah Bakhsh complainant of above said case filed Crl. Appeal No. 184 of 2009 against acquittal of accused/respondents Nos.1 to 3 whereas the complainant has also filed Criminal Revision No.81 of 2009 for enhancement of sentence of the respondents to death.

12. Learned counsel for the appellants argued that it is a case of no evidence; that the occurrence took place after Maghrab and was reported to the police at about 10:35 p.m.; that there is no explanation regarding the lapse of time between the occurrence and report; that as per record, no first-aid was provided to deceased; that as per death report issued by medical officer of THQ Hospital, Mailsi, the death was caused due to excessive bleeding from the left leg of deceased; that as per Exh.PB/3 the entrance wound has been mentioned from the inner side of the left leg whereas the exit wound is located on the outer side of the same, it does not appeal to reason that a person, while standing on the right side made fire shot at left leg when the right leg is more close to him to make fire; further submits that there is no blackening on the right leg; that the actual witnesses of the occurrence neither appeared before police nor before the learned trial court; that it is a case of no evidence and that according to learned trial Court, the motive has not been established through any cogent and independent evidence; that the appellants being innocent are entitled for acquittal.

13. On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and supported the impugned judgment. They further contended that the medical evidence fully corroborates the ocular account, therefore, the appellant is not entitled for acquittal. Learned counsel for the complainant also prayed for enhancement of sentence of the appellant to death. Learned counsel for the complainant further argued that learned trial Court, while acquitting Muhammad Zafar, Abdul Haq and Zakir alias Punnon has misread the evidence on record therefore, they be punished with capital sentence.

14. I have heard the learned counsel for the parties and thrashed out the record with their able assistance.

15. Admittedly, the occurrence took place after Maghrab-Wela, but the FIR was got lodged at 10:35 p.m. The complainant in his cross-examination had stated that the toll tax is situated in front of Abadi of their Chak and a man can easily reach there within half hour on foot and if the journey is on motorcycle, it takes 15-minutes to reach there. Further, he has also admitted in his cross-examination that a permanent police chowki is situated near the toll tax, if the permanent police post is located at this short distance, why the delay of about 3 to 4 hours was occurred in reporting the occurrence. As per evidence of Medical Officer of THQ Hospital Mailsi, there was no sign of first-aid given to the deceased. It has also been mentioned in postmortem report Exh.PB that the probable time between the occurrence and the death was half to one hour approximately. If the deceased died half to one hour after the occurrence, even then the delay in reporting the occurrence is still unexplained. As per Exh.PB/3 the entrance wound has been mentioned from the inner side of the left leg whereas the exit wound is located on the outer side of the same. It does not appeal to reason that a person, while standing on the right side made fire shot at left leg when the right leg is more close to him to make fire. As per postmortem report There is no blackening on the right leg; As per FIR, the deceased is lying upon the cot in the house of his sister and five accused persons stormed there and Abdul Haq, accused raised Lalkara to catch hold of Muhammad Amin, deceased. Abdul Haq caught hold the deceased of his arms whereas Zakir alias Punnon caught hold the deceased from his legs. Khizar Hayyat, appellant fired shot on the leg of Muhammad Amin, deceased. It is not acceptable to a prudent mind that catching a person is necessary to make fire shot towards him. Even otherwise, the Doctor did not find any sign on the dead body of catching hold of the same.

16. As per Ex.P.E, the motive behind the occurrence is that the deceased Muhammad Amin used to tease the sister of accused, due to which, the occurrence took place. As per record, this is a night time occurrence, whereas, it is nowhere mentioned that what was the source of light, through which, the complainant identified the accused persons. The police, also did not recover any bulb etc. from the place of occurrence.

17. The place of occurrence is not the house of deceased, rather it was the house of his sister. Though the sister of deceased as well as other inmates of the house were present but not a single witness appeared before the police or before the learned trial Court to support the story of prosecution. PWs are close relatives inter se. It is an unseen occurrence and the motive was not established. The Prosecution has failed to establish any cogent and reliable reason to substantiate the story. The co-accised were also acquitted by the learned trial Court on the same footings.

18. In view of what has been discussed above, Criminal Appeal No.208 of 2009 is allowed, impugned judgment is set aside and the appellant namely, Khizar Hayyat and Ghulam Mustafa are acquitted of the charge. They are on bail, through suspension of their sentence, hence their bail bonds stand cancelled and the surety stands discharged from their liabilities. As a necessary corollary, Criminal Appeal No.184 of 2009 filed by the complainant against acquittal of Muhammad Zafar, Abdul Haq and Zakir alias Punnon and Crl. Revision No. 81 of 2009 filed by the complainant for enhancement of sentence of the convicts stand DISMISSED. HBT/K-33/L Appeal allowed.