2017 PLP 27 (YLRN)

MAZHAR IQBAL SIDHU, J.

Appellants Khalid Pervez, Muhammad Aslam and Adeel Asghar by way of filing instant appeal under section 410, Cr.P.C. impugn the legality of judgment handed down by the learned Additional Sessions Judge, Mandi Baha-ud-Din on 26.07.2007, through which after having been tried in a case registered vide FIR No. 126 dated 20.04.2005 under sections 302/148/149, P.P.C. at Police Station Pahrianwali, District Mandi Bahauddin punished infra:- Under section 302(b) read with section 34 of Pakistan Penal Code. Life Imprisonment each and to pay compensation to the tune of Rs.50,000/- each as required under section 544-A, Cr.P.C. to the legal heirs of deceased Irshad Ahmed and in default whereof to further undergo rigorous imprisonment for six months each. They were also extended the benefit of section 382-B, Cr.P.C.

3. Complainant Munawar Hussain (PW-05) got recorded his statement Exh-PD before Muhammad Azam, SI (PW-8) at 04:45 p.m on 20.04.2005 at Jokalian on the basis of which formal FIR Exh-PD/1 was lodged.

4. Facts abbreviatio disclosed by the complainant in Complaint Exh-PD are that he was resident of Kamonkey. His cattle shed was at a distance of about 2/3 acres towards North of the village whereas the cattle shed of his brother Irshad Ahmed (deceased) was at a distance of 02 acres from his dera. On 20.04.2005, he along with Irshad Ahemd (brother), Shehzad Munawar (son) and Muhammad Amjad, who had stayed there as guest, was present at the dera of his brother Irhsad Ahmed, as he had started harvesting of wheat crop. At about 03:30 p.m, he along with his brother Irshad Ahmed, his son Shahzad Munawar was going for harvesting. Irshad Ahmed was going ahead of them whereas the complainant along with his companions was behind him at a little distance. When Irshad Ahmed reached facing dera of one Allah Ditta, out of the blue, Muhammad Asghar (since P.O) armed with rifle .44-bore, Adeel Asghar and Jamshed Asghar (tried separately as juvenile now acquitted) armed with rifle .7-MM, Khalid Pervez armed with rifle .44 bore, Muhammad Aslam armed with rifle .7-MM and Muhammad Ansar (since P.O) with common object were ambushed, came in front of them. Muhammad Ansar (since P.O) raised lalkara that Irshad Ahmed should not be spared on the same day, whereupon, Muhammad Asghar made a fire shot with his rifle .44-bore, which hit Irshad Ahmed on his chest near neck. The fire shot made by Jamshed Asghar with rifle .7-MM hit Irshad Ahmed on right side of his chest. Thenceforth, Khalid Pervez made a fire shot with his rifle .44-bore, which hit Irshad Ahmed on right side of his chest, whereas the fire shot made by Muhammad Asghar also hit Irshad Ahmed on his chest. Then Muhammad Aslam made a fire shot which hit Irshad Ahmed on his right thigh. When Irshad Ahmed was about to fell, Adeel Ahmed fired with his rifle which hit Irshad Ahmed on his back, who fell to the ground. All the accused took flight towards South, while making firing. The complainant and his brother did not go near due to fear. Irshad Ahmed succumbed at the spot. The motive behind the occurrence was that about two years back, Waqas Munawar, complainant's son caused injuries to Muhammad Asghar (since P.O) by firing and Muhammad Asghar suspected that the firing was got made by Irshad Ahmed and due to that grudge, Muhammad Asghar and others assassinated his brother.

5. The investigation in this case was conducted by Muhammad Azam, SI, who appeared as PW-08. He deposed that on 20.04.2005, he was present on patrolling duty at Jokalian. On receipt of information of the occurrence, he proceeded to the place of occurrence where complainant Munawar Hussain appeared before him, he recorded his statement Exh-PD, which was read over to him, who signed the same in token of its correctness, sent the copy of complaint through Muhammad Inayat 117-C for formal registration of the case, on the basis of which formal FIR Exh-PD/1 was recorded, inspected the dead body, prepared inquest report Exh-PG injury statement Exh -PG/1 and drafted an application for postmortem examination Exh-PG/2 and handed over the dead body of Irshad Ahmed deceased to Muhammad Akram 275-C for getting its postmortem examination, sent Bashir Ahmed and Karamat Ullah PWs for the identification of the dead body, collected the blood imbrued earth from the place of occurrence, made it into a sealed parcel, took the same into possession vide recovery memo Exh-PE attested by the PWs, took into possession crime empties of .44 bore rifle P-4/1-4 from the place of occurrence, made it into a sealed parcel, took the same into possession vide recovery memo Exh-PF, also inspected the place of occurrence, prepared rough site plan of the place of occurrence, which was Exh-PH, on the same day after postmortem examination, Muhammad Akram, 275-C produced before him last worn blood imbrued clothes of the deceased Qamiz P-1, Tehmand P-2 and a sealed phial P-3, took the same into possession vide recovery memo Exh-PC attested by the PWs, recorded the statements of the witnesses at the place of occurrence and also recorded the statements of other PWs, deposited the sealed parcels to the moharrar for their safe custody in the malkhana for further legal proceedings. On 24.04.2005, he along with Halqa Patwari visited the place of occurrence, on his instructions and on the pointing out of the PWs Halqa Patwari took the rough notes of the place of occurrence. On 26.04.2005 Patwari Halqa, handed over to him scaled site plan in duplicate Exh-PB and Exh PB-1, recorded his statement. On 06.05.2005, he recorded the statements of Zaigham Abbas HC and Muhammad Akram constable, searched the accused during this period but they were not traceable. On 25.05.2005, Ansar accused joined the investigation, who produced evidence in his defence and his arrest was kept pending. On 27.05.2005, accused Khalid Pervez, Muhammad Aslam, Adeel Asghar and Jamshed Asghar were arrested by him, got their physical remand, interrogated them, both the parties were confronted, accused persons produced evidence in their defence. During investigation, presence of Ansar accused was found to be at Keeranwala while Khalid Pervez and Adeel Asghar were also not found present at the place of occurrence and were found present at Asadullah Pur in bus. The remaining accused persons Aslam and Jamshed Aghar were also found innocent during his investigation on the basis of defence evidence. His investigation was also verified by the SHO and DSP/SDPO, Phalia, got issued warrant of arrest of Muhammad Asghar, warrant of arrest was Exh-PJ, he also got issued his proclamation, which was Exh-PK and also recorded the statement of Muhammad Abbas constable.

7. Learned trial court after observing all the pre-trial codal formalities, indicted the appellants to which they pleaded non-culpabilis/rien-culp and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case.

8. The prosecution to prove its case produced 08 prosecution witnesses in all.

9. The medical evidence was adduced through the statement of Dr. Ijaz Ahmed Mughal, MO (PW-01) who on 20.04.2005 conducted postmortem examination on Irshad Ahmed's dead body and observed infra:- INJURIES

1. Lacerated firearm wound 3/4 cm x 1/2 cm just below right clavicle on right side of the chest 3cm lateral to the sternum going deep into the chest. Inverted edges.

2. Lacerated fire arm wound which was 11.5 cm below injury No.1 on right side of the chest inverted edges.

3. Lacerated firearm wound 1/2 x 1/2 cm which was 1/2 cm below injury No. 2 inverted edges. 4. 1/2 x 1/2 cm lacerated fire arm wound 1-1/2 cm lateral to injury No. 3 in front of chest, everted edges.

5. Lacerated fire arm wound 5 cm x 3cm on right side of the chest 1-1/2 cm below to injury No.4 and 2-1/2 cm medial to the right nipple going deep everted edges.

6. Lacerated fire arm wound 2.5 cm x 1 cm on right side of abdomen on anterior lateral aspect which is 6cm above anterior superior ilicsupine, everted edges.

7. Lacerated firearm wound 1-1/2 cm x 1 cm on right thigh which was 20 cm above right knee joint, on anterior aspect of thigh. There was clinical fracture of femur present, inverted edges.

8. Lacerated fire arm wound on posterior aspect of right thigh which, was 18cm above popliteal fossae, everted edges.

9. Lacerated firearm wound 2cm x 3/4 cm on back of right side of chest just lateral to the midline, inverted edges 3 cm below the right scapula.

10. There was an abrasion 1-1/2 x 1 cm on right knee joint anterior aspect. OPINION After careful examination of the dead body, he was of the opinion that death occurred due to injuries Nos. 1 and 9, which damaged vital organs, right lung and liver and major blood vessels of the heart. The other injuries Nos. 2, 3 and 7 are contributory to death. In ordinary course of nature, these injuries were sufficient to cause death. All the injuries from 1 to 10 were ante-mortem in nature. All the injuries from 1 to 9 were caused by firearm. Probable time that elapsed between the injuries and the death was immediate and probable time that elapsed between death and postmortem 4 to 10 hours. Exh-PA was the postmortem report whereas Exh-PA/1 was the pictorial diagram.

10. Learned DDA renounced Karamatullah as being unnecessary and by tendering in evidence the report of Chemical Examiner Exh-PL and that of Serologist Exh-PM closed the prosecution evidence.

11. Afterwards the statements of the appellants under section 342, Cr.P.C. were recorded, in which they denied and controverted all the allegations leveled against them by the prosecution and professed their innocence. All the appellants neither opted to adduce evidence in their defence nor to appear as their own witness under section 340(2), Cr.P.C.

12. All the appellants in reply to the question "why this case against you and why the PWs have deposed against you" answered in the same way, which is as follows:- "I am close relative of Asghar accused (since PO) due to this reason, I have been falsely implicated in this false and fabricated case. During investigation, I was declared innocent by the police. PWs are closely related to deceased and inimical towards me. Therefore, they have falsely deposed against me".

14. Upon conclusion of the trial, appellants were convicted and sentenced as mentioned op-cit by the learned trial Court. Hence, the appeal.

15. To seek acquittal by instant appeal, learned counsel for the appellants has argued that the appellants are not directly related to the flash point involved in this case; the motive though not proved but if it is to be taken as such, directly goes against Muhammad Asghar co-accused (since P.O); Adeel Asghar appellant and Jamshed Asghar (tried and acquitted separtely as being juvenile) are real sons of Muhammad Asghar, deserter, whereas appellants Khalid Pervez and Muhammad Aslam are absolutely alien to the motive and on account of party faction, they have been involved and the appellants partway investigation were found innocent; no weapon of offence has been recovered from any of them; Jamshed Asghar, the juvenescent has been acquitted by the learned trial court against whom a specific role has also been mentioned in the FIR that he was holding a .7-MM rifle with which he made a fire shot hitting on the right side of chest of the deceased and qua him, if the prosecution evidence has not been believed; then how the same can be believed against the appellants, who have been found innocent during the investigation and this fact has also been got acknowledged by the defence during the cross-examination of the eye-witnesses; mere parrot like narration of the FWs cannot be taken as a gospel truth but it has to be adjudged by the Court that in all probabilities the testimony made by them can be regarded truthful in the light of the rational faculty of an ordinary prudent man; does this adage saw not apply in the case, that it being a trite since in the days before that innocent persons are involved along with the actual wrong doer and in this case when the defence has been seen open mouthed qua the presence of Muhammad Asghar (P.O) and Jamshed Asghar, who allegedly participated (since acquitted) then it can be inferred as to the appellants that they might have been involved on account of their propinquity with the principal accused and owing to party faction. This fact at one stage, when evidence was being collected investigatingly, has also been established; that appellants Khalid Pervez and Jamshed Asghar, juvenile (since acquitted) and Muhammad Asghar proclaimed offender, these three persons have been attributed injuries on the right side of the chest of the deceased and distantial inter-se proximity injuries do exist but it is not believable that they injuries might have been caused by the appellants manfully by itself, demolishes the prosecution case; the reasons being very simple that after sustaining an injury on such a vital part, the deceased could not stand after receipt of four injuries on his chest, then how other injuries may be received by the deceased around or near the first injury. Lastly as ace, it has been submitted that no weapon of offence has been recovered from any of the appellants; the independent corroboration against the appellants lacks in this case, therefore, in the circumstances of the case, the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable doubts, therefore, by solicitation of acquittal, arguments have been closed down.

16. Learned DPG on assistance of learned counsel for the complainant has exquisitely tried to refute the arguments by arguing that the occurrence took place in the light of sun at about 03:00 p.m within the view of eye-witnesses having no reason to become false witness or to involve any person falsely; the matter was reported to the police on the same day at about 05:30 p.m whereas the distance from the place of occurrence to the police station is six miles and the deceased died of fire shot injuries at the place of occurrence, in this way, if the time is reckoned then the question is very simple that no element of deliberations and consultation has been found, when the chance was available with the complainant; police opinion simpliciter as being a dogmatic statement of the investigating officer being inadmissible and irrelevant cannot be relied upon here in appeal, contrarily ocular account exists being in sync with the medical evidence and the eye-witnesses are consistent as well persistent so far as the accusational role played by the appellants are concerned. Lastly it has been submitted that non-existence or proof of motive qua the appellants does not mean that they are absolved of the commission of crime alleged and one of the principal accused namely Muhammad Asghar is yet to be prosecuted, therefore, the appellants are not entitled to be benefitted to acquittal.

17. Intently arguments heard. Record has been coup d'oeil.

18. The incident took place in the light of sun. The appellants were nominated in the FIR mauger they were not involved by the investigating agency. Jamshed Asghar, who was tried as a juvenescence was declared involved in the occurrence notwithstanding, he has been acquitted disbelieving the prosecution version. The appellants have been reported, having propinquity with the principal accused, who is proclaimed offender. The manner through which, the attribution of injuries has been assigned to the appellants is repellant to the senses, as all injuries on the chest of the deceased have been found located within a close inter-se proximity and that too having been caused with .7-MM rifle. This fact is incredible. They have also been found alien to the motive alleged in the FIR. No weapon of offence has been recovered from any of the appellants. No independent corroboration has been brought on the record against their involvement and more particularly that defence has not denied the participation of Muhammad Asghar (since proclaimed offender) and Jamshed Asghar (tried separately but acquitted). It has been noticed that the appellants have been assigned specific injuries but it is difficult for a discrete person to accept that in the circumstances of the case, roles of the appellants can be said alone sufficient to uphold conviction upon them. In all circumstances, this Court has been persuaded by the arguments of the learned counsel for the appellants that the prosecution remains failed in proving the case against the appellants beyond any shadow of reasonable doubts.

19. In view of the above discussion, instant appeal is allowed, impugned judgment of conviction and sentence is set aside and the appellants are acquitted of the charges imputed against them. They are on bail. Their sureties are discharged from the liabilities owed by them.

20. Before parting with this judgment, it is markedly observed that acquittal of the appellants will not cause any effect upon the case of desserted accused whenever he is brought to justice. HBT/K-5/L Appeal allowed.