2002 PLP 1809 (MLD)

The death was caused on account of injury No. l which was fatal and had resulted in profuse' bleeding from the artery. The injuries were caused with sharp‑edged as well as blunt weapons. The P.W. also examined Khaliq Dad appellant and described the following injuries on his person:‑‑ (1) An abrasion 1‑1/2 x 1 c.m. on the back of left chest lower chest 4 c.m. left to midline. (2) An abrasion 8 x 1 / 16 c.m. on the back of left chest on mid scapula region. (3) Contusion mark 14 x 1/2 c.m. on outer and backside of left shoulder. (4) Lacerated wound 1‑1/3 x 1/2 c.m., muscle deep on the left side of head 10 c.m. above and back to left ear. (5) Lacerated wound 1 x 1/4 c. m. x muscle deep on the left back of head 5 c.m. below and back to injury No. 4. (6) Incised wound 9 x 1 c.m. muscle deep on the right side of head 7 c.m. above the right ear. (7) Contused swelling 10 x 5 c.m. on the left tample. (8) Lacerated wound 1/2 x 1/4 c.m. on the outer side of left upper eye‑lid with swelling 4 x 2 c.m. (9) Contused swelling 7 x 3 c.m. on the front medial aspect of right thigh 2 c.m. above the knee‑joint. (10) Contusion mark 8 x 3 c.m. on the medial side of left lower leg middle part. (11) Contusion mark 8 x 3 c.m. on outer side of right lower leg upper part. . (12) Contusion mark 9 x 2 c.m. on outer side of right knee‑joint. (13) Lacerated wound 1/2.x 1/2 c.m on the left and inner side of lower lip. (14) Complaint of pain with nasal bleeding on the bridge. All the injuries have been caused with blunt weapon except injury No.6. which was result of a sharp‑edged weapon. Nazar Muhammad complainant was also subjected to medical examination and following injuries were noted on his person:‑‑ (1) An abrasion 1 x 1/2 c.m. with swelling 5 x 2 c.m. on the bridge of nose. (2) Contused swelling 5 x 4 c.m. at the base of paimar side of left thumb. They have been caused with liunt weapons. Muhammad Afzal given up P.W. was medically examined and found on his person which had been caused with fire-arm;

(1) Round wound 3/4 x 3/4 c.m. with inverted margins and 1/2 c.m. deep on front of right thigh at the junction of upper 1/3 and lower 2/3 of thigh. No burning or blackening was present on the margins.

8. The rest of the witnesses except Investigating Officer are more or less formal in nature. However, P.W.5 Khan Muhammad, Patwari, who prepared the site plans Exh.P.A. and Exh.P.A./1 deposed that he prepared the same on the pointation of the witnesses and under instructions of the Investigating Officer. As already pointed out, the investigation was conducted by Khadim Hussain P.W.13 and the important recoveries effected by him from the spot have already been referred to.

9. After close of the prosecution evidence, the appellant Khaliq Dad was examined under section 342, Cr.P.C. As per his statement, he came up with the following version:‑‑ It is correct, I was going from Kotmomin to Chak No. 19 on foot when I passed near the place of occurrence I saw Munawar and Iltaf deceased persons armed with Chhuri and Sota respectively, were following Nawazish Ali deceased. I asked them not to aggress Nawazish Ali thereupon Altaf and Munawar started giving me blows with their respective weapons. I became unconscious and. do not know what happened thereafter. I regained my senses in hospital and came to know that Nawazish, Munawar and Altaf were killed during fight.

10. Arguments heard and the record perused with the help of the learned counsel for the parties. As it is evident from the narration of the facts detailed above, the following facts are admitted:‑‑ The place of occurrence as stated by the prosecution has not been disputed by the accused‑appellant. It is admitted fact that Munawar Hussain, Altaf Hussain from the complainant party and Nawazish Ali from the accused party were injured and succumbed to the injuries at the spot. Apart' from the aforesaid three deceased, Nazar Muhammad P.W.11, Afzal not produced and Khaliq Dad appellant were injured at the spot during the incident. According to prosecution, Nawazish is the main accused who had motive to kill Munawar Hussain as brother of Nawazish Ali had been killed by the complainant party, although according to him as a result of an accident which he met with the tractor belonging to the complainant party. Nawazish, Khizar Hayat and Khaliq. Dad and the three came to the spot while riding motorcycle. Nawazish Ali was carrying a grin which subsequently stated to be a licensed weapon of Khaliq Dad appellant. It has been the consistent stand of the prosecution witnesses as per depositions made by Nazar Muhammad and Muhammad Anwar in the Court that Nawazish Ali fired a shot hitting Munawar Hussain which proved to be fatal. He was thereafter given a sickle blow on the neck. The injury caused profused bleeding from the main artery as a result of which Nawazish Ali died at the spot. Thereafter, according to prosecution, the gun carried by Nawazish Ali fell down which was picked up by Khaliq Dad appellant. He, in the first instance, inflicted a Butt blow on the face of the complainant and thereafter fired a shot from the gun hitting Altaf Hussain on his abdomen. Khizar Hayat did not perform any overt act except that he held Munawar Hussain in his claspe whereafter he was fired at by Nawazish Ali. He fled away during the occurrence. Khizar Hayat, however, was not, found guilty and was acquitted of the charge against him.

11. As against the prosecution version, the defence version put forward by Khaliq Dad appellant through, his statement under section 342, Cr.P.C. that complainant party comprised of Munawar Hussain and Altaf Hussain deceased had mounted an attack on Nawazish Ali and the appellant prevented them from doing so. They got infuriated and subjected him to severe beating as a, result of which he fell unconscious and as such he was not in a position to describe or explain as to how Munawar Hussain and Altaf Hussain were killed. The defence version as put forward by appellant is of no help to determine the fact in issue as to how occurrence took place and especially how Munawar Hussain and Altaf Hussain were done to death. This statement is rather evasive and does not to any manner help to resolve the issue involved herein.

12. The deeper appraisal of the evidence comprising of the ocular account furnished by the eye‑witnesses and also keeping in view the medical evidence, the prosecution version suffers from a number of fallacies and infirmities. As regards murder of Munawar Hussain, there is no controversy as according to prosecution itself, the same had been caused by Nawazish Nawazish Ali who carried the gun opened fire and Munawar Hussain fell victim to the same. The narration of incident thereafter does not appeal to reason and appears to be inconsistent and implausible. After first fire, Nawazish Ali was subjected to sickle blow which was quite severe and he could not sustain the injury. Thereafter, Khaliq Dad appellant took up the gun. When Nawazish Ali who was armed with a gun was subjected to severe blow with the sickle, the P.Ws. must be very, close to him. Nawazish Ali when he fired at Munawar Hussain, he was standing at some distance from the witnesses as per the site plan which is the pictorial diagram of the incident. Nawazish Ali who had come prepared by arming himself with a gun and has already killed one person and has also a motive against the complainant party would have easily fired a second shot especially when the gun was a double barrelled one. The fact that gun was dropped and was picked up by Khaliq Dad does not appear to be acceptable because the P.Ws. who were not empty‑handed and they' were equipped with sickle and Dangs; etc., they could not have permitted Khaliq Dad to pick up the gun and thereafter resorted to firing. As per site plan, Khaliq Dad would be farther from Nawazish Ali than the witnesses who had practically fallen upon him and had caused injuries on his person. The possibility ‑that both the persons would have been injured by Nawazish Ali cannot be ruled out rather the same appear to be more acceptable. The question as to why Khalid Dad has been alleged to have fired a shot, the answer is not difficult to understand, Khaliq Dad has been injured at the spot and to order to justify the injuries on his person, the blame was put to him: Khizar Hayat who is stated to have fled away from the spot seems to have been falsely implicated because it is bit unusual that three persons would have come on one motorcycle and out of thetas two would be empty‑handed. It can be accepted that one person would have driven the motorcycle and normally he is to be empty‑handed and the persons sitting at the pillion would be carrying weapon. The plan seems to be that Khaliq Dad and Nawazish Ali came to the place of occurrence in order to mount an attack. Khaliq Dad was empty‑handed as he has to drive the motorcycle and Nawazish Ali would have carried the gun because he had motive to commit murder of the deceased persons. Somehow the plan could not succeed. They could not make escape after the incident, therefore, Nawazish Ali and Khaliq Dad both were apprehended or subjected to counter‑attack in their self‑defence. Tile participation of Khizar Hayat is negated for this reason as well. He could not have held Munawar Hussain in his claspe and‑asked Nawazish Ali to fire at him by risking his own life. The prosecution, therefore, has not come forward with true narration of facts.

13. The prosecution 'story is further contradicted by the fact that EXh.P.A. which is the site plan is always treated as an important document. Site plan bears the notes in black by the Draftsman and notes in red by the Investigating Officer. As per note No.6 in black as well as note No.7 in red given by Draftsman and Investigating Officer respectively, it is Khtzar Rayat who is stated to have been fired at Altaf which is contrary to what has been stated by the eye‑witnesses i.e. Nazar Muhammad and Muhammad Anwar According to them, Khaliq Dad appellant had fired at Altaf Hussain deceased. Although both the Draftsman and the Investigating officer are not eye‑witnesses yet they prepared the site plan on the pointation of the witnesses. The significance of these notes cannot be ignored merely treating them as an inadvertent mistake because both the witnesses i.e. Draftsman and the Investigating Officer have stated that it was Khizar Hayat who fired at Altaf. This contradiction also creates a dent in the prosecution case. As held by the Hon'ble Supreme Court in the case of Muhammad Ahmad and another v. The State and others (1997 SCMR 89) site plan prepared by Draftsman on pointation of eye‑witnesses can be referred to for determining the respective positions of the accused and deceased. The site plan, therefore, is not without significance. Any note or reference therein, if contradictory, to the prosecution case cannot be just ignored.

14. In view of the above discussion, the prosecution has not been able to discharge its onus beyond doubt and it suffers from material discrepancy and inconsistency, it would be unsafe to uphold and maintain the conviction and sentence of Khaliq Dad appellant. The appeal is, therefore, allowed. The appellant's conviction and sentence recorded‑by Malik Nazir Hussain Awan, learned Sessions Judge, Sargodha, vide judgment dated 16‑6‑1998, is set aside and he is acquitted of the charge against him. He will be released from jail forthwith if not required in any other case.

15. For the reasons recorded above, Criminal Revision No.339 of 1998 fails and is hereby dismissed. H.B.T./K‑142/L Appeal allowed.