2003 PLP 3116 (YLR)

For the murder of Bashir Ahmad, son of Shera‑complainant, Shameer alias Phulla son of Nadir, was tried by a learned Additional Sessions Judge at Jhang. The learned trial Judge, by virtue of his judgment dated 25‑2‑2000 found him guilty of the said charge, convicted him under section 316, P.P.C. and sentenced him to rigorous imprisonment for five years as Ta'zir with further direction to pay Diyat to legal heirs of the deceased or in default thereof to be kept in jail till its payment as if sentenced to simple imprisonment. It was further directed that if the convict is unable to pay Diyat, then the Government shall pay the same to legal heirs of the deceased. Benefit of section 382‑B, Cr.P.C. was, however, extended to him.

2. The convict by filing this appeal has called in question conviction and sentence passed against him by the said learned Judge.

3. Brief facts as revealed through contents of F.I.R. (Exh.P.D./1) are that on 27‑6‑1997 at about 4‑00 p.m. Shera alongwith his son Bashir Ahmad, Ahmad son of Chawa, Maula Bakhsh son of Sadiq and Jaffar Hussain son of Bashir Ahmad was sitting outside his house in the Bazaar. Shameer alias Phulla son of Nadir arrived there and hurled incivilities towards Bashir Ahmad. Then he tried to take away a buffalo of Bashir Ahmad, who forbade him, whereupon Shameer delivered a head blow on chest of Bashir Ahmad. He fell down. Thereafter the appellant starting giving kick blows on his private parts. On hearing commotion raised by the complainant and his compatriots, the appellant levanted from the spot. Bashir Ahmad succumbed to his injuries instantaneously. Reasons for the outbreak of this episode is that about three months prior to the present incident, Bashir Ahmad sold out a he goat to the appellant for a consideration of Rs.1,500, out of which Rs.400 were due towards the appellant. Due to non‑payment of outstanding amount, Bashir Ahmad instead of settling the matter brought back his he‑goat and for this reason the appellant committed mactation of Bashir Ahmad. Leaving Ahmad and Jaffar Hussain P.Ws. to guard against the dead body, the complainant left for the police station and came across Muhammad Ishaq, S.‑I. (P.W.8) at Mauza Talib, on the same day at 5‑05 p.m., when he was available on patrol duty. The said police official as per dictation of the complainant reduced into writing complaint (Exh.P.D.) and despatched the same to the police station through some constable for formal registration of a case. On receipt thereof at the police station, Faqir Hussain, M.H.C. (P.W.2) drew up formal F.I.R. (Exh.P.D./1) on the same day at 5‑30 p.m. correctly without any addition or substraction on his part.

4. Succeeding registration of case, investigation into the crime commenced forthwith. The investigating agency after discrete investigation into the crime found the appellant guilty and challaned him to the Court to face his trial.

5. On receipt of challan, the learned trial Judge subjected the same to necessary scrutiny and then proceeded to frame charge against the appellant. It was put to him, to which he pleaded not guilty and claimed to be tried. Thereafter, the prosecution was called upon to produce the best possible evidence available within its power and domain to establish its case beyond any shadow of doubt against the appellant. In compliance of said direction, as many as eight witnesses were examined by the prosecution.

6. Thereafter the appellant was examined under section 342, Cr.P.C. All the incriminating material was put to him, so that he may offer his explanation with regard to the crime imputed to him. He alleged his false implication in the case due to enmity. He opted not to make statement on oath under section 340(2), Cr.P.C. in disproof of allegations brought against him. He did not produce evidence in defence.

7. The trial Court after considering totality of facts and circumstances revolving around this matter pronounced verdict of guilt against the appellant and punished him as afore‑mentioned.

8. Learned counsel for both the sides have been heard at length and record perused. Accusations brought against the appellant in the first information report are that he delivered a head blow right on the thorax region of Bashir Ahmad, son of the complainant and when he fell down repeatedly gave kick blows on his urino genital organs. Dr. Ghulam Shabbir, C.M.O. (P.W.1), performed legal autopsy on the dead body and observed no injuries or marks of injuries on the urino genital organs. Likewise he failed to observe or locate any injury on his thorax region. This brings me to irresistible conclusion that had eye‑witnesses, namely, Shera (P.W.5) and Ahmad (P.W.6) been available at the spot during course of occurrence, then the ocular account furnished by them should have tallied with contents of the post‑mortem report. Contents of the post mortem report falsify version of the witnesses. Doctor observed a bruise on the backside of neck of the deceased, which was never assigned to the appellant. There is patent inconsistency between ocular account and the medical evidence. Presence of eye witnesses at the spot during course of occurrence is falsified. Learned counsel for the State confronted with this situation could not rebut this argument advanced by learned counsel for the appellant that presence of the eye‑witnesses at the spot is rendered doubtful. Because statements of the witnesses are not in harmony with the medical evidence, case becomes doubtful. In such a case, conviction and sentence of the appellant cannot be maintained.

9. Contradiction between ocular account and medical evidence has created a real doubt, the benefit of which has to be extended to the appellant. Accordingly, by, accepting this appeal, I quash conviction and sentence of the appellant. He is directed to be released from custody forthwith if not required to be detained in any other case. N.H.Q./S‑704/L Appeal accepted.