1994 P Cr (PLP)

Hidayat (37), Liaquat (30), Wali Muhammad (33) appellants alongwith Muhammad Ramzan (acquitted co-accused) were tried by the learned Additional Sessions Judge who vide his impugned judgment, dated 25-4-1992 convicted the appellants under section 460/34, P.P.C. to undergo imprisonment for life each, with a fine of Rs.20,000 each, in default whereof to suffer further R.I. for 3 years each. The fine, if realized, was directed to be given to the legal heirs of the deceased. The appellants were also extended the benefit of section 382-B, Cr.P.C. Hence they have come up in appeal to assail their conviction and sentence.

2. Briefly the prosecution case is that P.W.2 Mst. Kubra on 5-10-1988 at 3-30 a.m. lodged F.I.R. Exh.PA. at Police Station City Sadiqabad recorded by P.W.17 Muhammad Mushtaq, Inspector/S.H.O. to the effect that she was married about 7/8 years earlier to Riaz Ahmad deceased and from the wedlock two children were born, who were alive. The deceased was working as a cleaner on a trailer at Messrs Bashir Goods. About one year earlier to the present occurrence, the deceased had purchased a plot in Ilyas Colony, Sadiqabad and had constructed a house. They were living in the same house r and on the night of occurrence, Riaz Ahmad deceased reached the house. He along P.W.2 Mst. Ghulam Kubra slept in the courtyard. At about mid-night the deceased husband of the complainant due to cold went inside the room and slept. At about 2-1/2/3 a.m. the complainant heard a fireshot and woke up and witnessed that a person wearing blue colour Shalwar, shirt, having small beard, thin smart middle aged, while holding a pistol in his hand was standing. The deceased husband of the complainant while soaked in blood was lying underneath the cot. There was electric bulb on in the courtyard and the room. The complainant after getting up from the cot ran towards the said person, who while witnessing the complainant coming towards him took up .12 bore licensed gun of Riaz deceased hanging at the wall. The complainant while raising hue and cry tried to apprehend him. The said person gave butt blow to the complainant, who fell down, but continued raising alarm. On hearing the alarm P.W.1 Muhammad Hayat, real brother of Riaz deceased and Ghulam Ali P.W. (given up) who was sleeping in the Baithak after closing its door as a guest, came out and the said accused person after witnessing them called his accomplices to go as the needful had been done. The complainant witnessed two other persons alongwith the said accused in the courtyard and the said three within the sight of the complainant and the P.Ws. after opening the outer door ran away. P.W.1 Muhammad Hayat and P.W. Ghulam Ali (given up) wanted to catch hold of the accused, but the accused threatened the P.Ws. that if they would come near, they would also meet the same fate as that of Riaz accused. The P.Ws. due to fear stopped and did not go near them and all the three accused succeeded id running away. The witnesses had also witnessed the three accused in the electric light, who could be identified if they would come before them. The deceased was done to death due to old enmity by the accused as since long there was enmity in between the family. Riaz Ahmad had succumbed to his injuries. Leaving behind Ghulam Ali P.W. (given up) the complainant alongwith P.W.1 Muhammad Hayat reached the police station and lodged F.I.R. Exh.PA.

3. The appellants alongwith the acquitted co-accused Muhammad Ramzan were challaned and sent up for trial. Charges under section 460/34 and 302/34, P.P.C. were framed against the accused, to which they denied and claimed trial.

4. The prosecution examined 17 P.Ws. in all to substantiate its case. The prosecution case rests upon ocular account, medical evidence, recovery, identification parade and preparation of moulds. P.W.17 Muhammad Mushtaq, Inspector/S.H.O. had visited the spot, prepared injury statement and the inquest report, and despatched the dead body for post-mortem examination. P.W.8 Faiz Ahmad, Patwari visited the spot, prepared site plan Exh.P.H. and its duplicate Exh.P.H./1 and had given notes thereon, wherein he specifically stated that on the pointation of P.Ws. he had mentioned the courtyard from where the dead body of the deceased was lying. P.W.17 Mushtaq Ahmad, Inspector/S.H.O. has also mentioned in red ink the place i.e. Courtyard where the dead body of the deceased was lying. P.Ws.l and 2 have contradicted each other about the place where the deceased received fatal shots. P.W.17 on his first visit at the spot had neither found nor secured any empty from there.

5. On 5-10-1988 at 2-30 am. P.W.6 Dr. Muhammad Khalid conducted autopsy on the dead body of Riaz Ahmad deceased and found the following injuries on his person:-- (1) A fire-arm entrance wound 4 x 3 going deep with inverted margin. Right eyeball was massively damaged. Nasal bone was fractured. (2) Multiple small wounds 1/5" x 1/5" with inverted margins were present all around the main wound No.l. No wound of exit was seen. Brain was lacerated and small pellets were removed from the brain matter. In his opinion, injury No.l was sufficient to cause death in the normal course of nature. All the injuries were ante-mortem and caused by fire-arm. Probable time between injuries and death was immediate and between death and post-mortem within 24 hours.

6. The appellants alongwith the acquitted co-accused were arrested by P.W.13 Abdul Majid Bajwa, D.S.P. on 21-9-1989 in another case F.I.R. No.127/89 registered under section 399, P.P.C. at Police Station Sajha, District Rahimyar Khan. The investigation of the case was transferred to P.W.11 Naveed Mumtaz, S.I./S.H.O. on 3-10-1989 and he had formally effected the arrest of the accused on 4-10-1989 and sent them to judicial lock-up and obtained their physical remand on 1-11-1989. P.W.17 stated that he had secured the moulds of the accused from the street outside the courtyard of the house of the deceased, whereas P.W.2 has stated that this aspect was established at the spot after the occurrence. Neither any material nor moulds were produced and exhibited in the Court. P.W.11 has stated that the moulds were prepared with the footprints of the accused on 19-10-1989, whereas he has specifically stated during cross-examination that the accused remained in the District Jail, Rahimyar Khan from 4-10-1989 to 1-11-1989.

7. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence against them and stated that they had been falsely involved in the present case, and the real culprits could not be traced out by the police. They had been substituted and made scape goats. They neither produced evidence in defence nor made statements on oath as envisaged under section 340(2), Cr.P.C.

8. P.W.2 Mst. Ghulam Kubra wife of the deceased Riaz Ahmad had not mentioned the names of the accused in the F.I.R. Exh.PA. The accused were arrested on 21-9-1989 by P.W.13 Abdul Majid Bajwa, D.S.P. i.e. about one year after the occurrence. P.W.13 stated that he had secured gun P.6 from Hidayat appellant vide memo. Exh.P.J. attested by P.W.12 Azhar Hussain and P.W.16 Jam Muhammad Nawaz stated the date of recovery as 1-11-1989 and as the original memo. was not on the record, his statement could not be completed and thereafter he was never produced in the Court by the prosecution. P.W.16 Jam Muhammad Nawaz has stated that he could not identify the accused from whose possession the gun P.6 was secured. P.W.13 Abdul Majid Bajwa, D.S.P. stated during cross-examination that gun P.6 had no connection with the occurrence. The alleged gun P.6 was licensed in the name of the deceased and licence was neither produced in the Court nor exhibited, whereas P.W.1 stated that after the occurrence he had produced the licence before the police, and P.W.2 complainant stated that licence of the gun was produced after the recovery of the gun.

9. P.W.7 Rao Muhammad Iqbal, Naib-Tehsildar has specifically stated that he had conducted the joint identification parade in the premises of the District Jail, Rahimyar Khan and the accused had objected before holding the said parade that the Thanedar had obtained their National Identity Cards with photographs and had shown the same to the P.Ws. The identification parade was held on 4-10-1989 i.e. one year after the occurrence. The accused were arrested in another case on 21-9-1989. P.W.1 has specifically stated during cross-examination that the identification parade was held after about two months of arrest of the accused and he had been pursuing the case and visiting the police station during the period between the arrest and holding of identification parade of the accused. P.W.1 also. conceded that the names of the accused were inquired from them before holding the identification parade in his presence. In the circumstances, it is evidently clear that the accused were not previously known to P.Ws.l and 2.

10. Identification parade was held after two months of arrest of the accused after exactly one year of the occurrence. P.Ws.l and 2 had only seen the momentary glimpse of the accused. P.W.2 had stated three persons as accused in the F.I.R. Exh.PA. without citing their names, but surprisingly P.W.11 challaned four persons in the present case. Although Muhammad Ramzan, co-accused was acquitted from whom allegedly a pistol P.1 was recovered vide memo. Exh.P.B. alongwith two live cartridges secured by P.W.11 and attested by P.W. Ashiq Hussain (given up) and Lal Bakhsh (P.W.3), but no empty of pistol was secured by P.W.17 from the spot. The complainant had specifically mentioned in. the F.I.R. Exh.PA. that her husband Riaz was done to death by the accused due to old enmity, but no evidence of motive or enmity was produced by the prosecution at the trial. Moreover, the characteristics and description of the accused have not been given in the F.I.R. P.W.2 has stated that at about mid-night on the night of occurrence the deceased went inside the room due to cold and slept there and on hearing fire shot P.W.2 Mst. Ghulam Kubra witnessed the accused inside the room. P.W.1 has stated that the deceased was sleeping in the courtyard and was fired at there. The P.Ws. 1 and 2 (eye-witnesses) have made contradictory statements and have also made dishonest improvements. P.Ws.l and 2 are closely related to the deceased and their statements cannot be relied upon without independent and strong corroboration. P.W. Ghulam Ali, an independent eye witness named in the F.I.R. Exh.PA. was given up. The prosecution evidence does not inspire confidence.

11. Pursuant to the above discussion, I am of the view that the prosecution has failed to establish its case against the appellants beyond doubt and giving them benefit of doubt I acquit them of the charge. The appellants are in jail, they shall be released forthwith if not required in any other case. N.H.Q./H-106/L Appeal accepted.