1989 PLP 676 (MLD)

(2) Rounded lacerated penetrating wound 1 c.m. in diameter on antro lateral aspect of abdomen with charring (muscle deep entrance wound). (3) Rounded lacerated penetrating wound 1.25 c.m. in diameter on postero lateral aspect of abdomen with charring (Exit wound)." The injuries were opined to have been caused by fire‑arm. The result of the injuries was reserved for want of X‑Ray plate. On receipt of X‑Ray plate, the doctor opined that all injuries were simple in nature. He issued final report (Exh.9).

4. The case was challaned after completion of the investigation. The prosecution, during the trial, examined in all 5 witnesses, namely, P.W.1, Dr. Muhammad Idrees, who examined the injured, P.W.2, Jummo, the injured complainant, P.W.3 Mevo, the father of the complainant, P.W.4 Rasool Bux, Mashir of injuries, P.W.5 Additional S.H.O. Muhammad Eijaz, the Investigation Officer.

5. Both the accused were examined under section 342, Cr.P.C. Accused Muhammad Siddiq denied all the allegations made against him. He also denied the recovery of revolver from the fold of his Shalwar with 5 live bullets. He admitted his relationship with the complainant, but denied to have gone to the house of complainant to kill him. In reply to a question, what else has he to say, he made the following reply:‑ "Due to dispute over the exchange of hands of the lady, complainant in collusion with police and his father Mevo have made out a false case against us. When I came to know that F.I.R. has been registered against me I myself appeared at P.S. I was not arrested in the manner as disclosed by prosecution witnesses and no recovery was made from my possession. Co‑accused is my Phuphat who is police constable."

6. Accused Ghulam Nabi also denied the allegations made against him: He admitted that he is relative of in‑laws of complainant, but denied to have gone to the house of the complainant to kill him. In reply to a question, what else has he to say, he made the following reply:‑ "Wali Muhammad father‑in‑law of complainant prior to this incident gave his daughter to the brother of complainant. Over some matrimonial dispute he instead gave his daughter to the brother of accused Siddiq. On this the complainant party was annoyed and they managed this case and falsely involved. We are innocent."

7. I have heard the arguments of the learned counsel for the appellants. The State counsel remained absent. I have also perused the record.

8. There is no direct evidence as regards motive, other than the statement of P.W,2 Jummo, the complainant. P.W.3 Mevo, father of the complainant has, on the contrary, belied him (P.W.2), when he deposed that, `Accused have no relationship with wife of my son'. Even the complainant (P.W.2) having said that both accused are relatives of his uncle candidly deposed, `both accused are relatives of my in‑laws. Accused had some dispute with my in‑laws and since I A brought back my wife they caused me injuries'. During his cross‑examination he had stated that Wali Muhammad is his father‑in‑law and one of his daughter is married to Sharif, the brother of accused Muhammad Siddiq. He then stated that he did not know the relationship of accused Ghulam Nabi with Wali Muhammad. He also deposed that he did not know the relationship between accused Muhammad Siddiq and Ghulam Nabi. In view of this evidence, the motive as alleged appeals to be all the more absurd. No importance can, therefore, in my opinion, be given to the motive‑as set up by the prosecution.

9. I find force in the contention of the learned counsel for the appellant that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the eye‑witnesses besides being closely related are not reliable. Moreover, there is. no independent piece of evidence corroborating their statements. The medical evidence, I further find, to a great extent belies the entire ocular account of the incident. P.W.2, Jummo, the complainant stated that appellant Ghulam Nabi caused him revolver butt blows on his mouth and head and other parts of the body, but no such injury was found by the medical officer on his Investigation no such injury mentioned even in the Mashirnama prepared by the Investigation Officer regarding injuries on the body of the complainant. As per F.I.R. it was after the firing of revolver of accused Muhammad Siddiq and upon cries of Jummo, the injured complainant, that his father Mevo and cousin Abdul Khaliq (the given up witness.) came there and they gave Hakals to the accused person; whereas in his deposition P.W. Jummo, complainant attempted to improve the case by stating that there were exchange of hot words between him and the accused, which attracted his father (P.W. Jummo), who stood mfg enquiry about the happening, when accused Ghulam Nabi gave him rifle butt push on his chest and he fell down. P.W. Jummo has said nothing about his father having gone unconscious; whereas his father (P.W. Mevo) has deposed that as a result of blow on his chest he had also become unconscious and came in senses after one hour. I further find that PW. Mevo has given the account of aced Muhammad Siddiq's firing at his son and Ghulam Nabi's giving rifle butt blows to his son. It indicates that the rifle butt push injury was caused to P.W. Mevo after firing at P.W. Jummo and causing injury to him by rifle butt. Thus, statement of P.W. Mevo belies the statement of complainant Jummo and vice versa, thereby rendering the statements of both the witnessses unreliable‑ Moreover, no supporting medical evidence is available on record with regard to P.W. Mevo's receiving butt blow injuries. He had allegedly gone for treatment to a private medical practitioner, but no certificate from any private medical practitioner has even been produced.

10. Similarly regarding F.I.R. P.W. Jummo, complainant, ha stated in his deposition that his mother had gone to police station and brought the police, and that the police brought him to the police station. Whereas if the F.I.R. it is mentioned that Abdul Khaliq and Mevo had brought him to the police station and he lodged the F.I.R. The witness had been duly confronted with his statement in the F.I.R. In his deposition, he stated that he did not remember‑if he did not mention in the F.I.R. that his mother went and brought police and thereafter police removed him from his house. P.W. Mevo in this behalf bm deposed' `my wife informed police and it was police, who had taken away my son'. P.W.4 Rasool Bux although acted as a Mashir in his cross‑examination admitted that complainant is his cousin and P.W. Haji Wazir removed Jummo in Rickshaw to D police station'. As against this, P.W. 5 Muhammad Eijaz, Investigating Officer has deposed that complainant appeared at police station and that he recorded his F.I.R. (Exh.11). The Investigating Officer, during his cross‑examination deposed, `the mother of complainant never appeared at the P.S. for lodging F.I.R.' Complainant has not mentioned in F.I.R. that his father Mevo was also given injuries. Complainant has not mentioned in F.I.R. that his father was also present, and that the father of complainant inquired from accused as to why they were quarrelling."

11. The upshot of the above discussion is that in view of the absurdity of motive, the untrustworthy nature of ocular testimony and conflict between ocular testimony and medical evidence, the case against the appellants had not been made out beyond reasonable doubt and they were entitled to benefit of doubt.

12. In the result, this appeal is allowed, the conviction and sentence of the appellants is set aside and they are acquitted. Appellant Siddique may be released forthwith if not wanted in any other case. The bail bonds of Ghulam Nabi is cancelled. M.Y.H./M‑699/K Appeal allowed.