2002 PLP 3034 (YLR)

3. After registration of the F.I.R. Muhammad Sharif, Inspector/S.H.O (P.W.14) took up the investigation of this case. He prepared an injury statement in respect of the complainant and sent him for medical examination. He thereafter proceeded to the place of occurrence, prepared an injury statement and an inquest report in respect of Muhammad Fayyaz deceased and sent the dead body to the mortuary for autopsy. He then inspected the spot, collected blood‑stained earth and two crime‑empties therefrom and then prepared a rough site plan of the place of occurrence and recorded the statements of witnesses.

4. On 15‑7‑1995 Dr. Aal‑i‑Rasul (P. W.8) conducted post‑mortem examination of the dead body of Muhammad Fayyaz deceased and found two fire‑arm injuries on it one of which was an entry wound and the other was an exit wound. In his opinion both the injuries were ante‑mortem and were sufficient to cause death in the ordinary course of nature. The cause of death was opined by him to be damage to both the lungs and aorta leading to internal haemorrhage, shock and death. The time elapsing between the injuries and death was opined by him to be within five to ten minutes and that between the death and post‑mortem examination to be between seven to eight hours. On the same day the same doctor also medically examined Ghulam Sarwar complainant and found two fire‑arm injuries on his person which had both been caused within a duration of six hours.

5. After the post‑mortem examination of the deceased Muhammad Sharif, Inspector/S. H. O. (P. W. 14), the Investigating Officer, received the last worn clothes of the deceased. On 16‑7‑1995 he got a formal site‑plan of the place of occurrence prepared by a draftsman. On 24‑7‑1995 he arrested Mehfooz Alam appellant on 25‑7‑1995 he recovered a pistol from the said appellant's possession. On 30‑7‑1995 he arrested Khurshid Alam accused. On 4‑8‑1995 he arrested Fayyaz Khaliq alias Pappu appellant and on 9‑8‑1995 he recovered a pistol from his possession. Thereafter, he concluded the investigation and submitted a challan.

6. At the commencement of the trial the learned Trial Court framed a charge with three heads under sections 302/34/109, P.P.C., 324/34/109, P.P.C. and 460/34, P.P.C. to which the appellants and their co- accused pleaded not guilty and claimed a trial.

7. During the trial the prosecution produced as many as fourteen witnesses in support of its case against the appellants and their co‑accused. Ghulam Sarwar complainant (P.W.9) and Muhammad Amir (P.W.10) furnished the ocular account of the incident in question and also deposed about the motive. Ghulam Yasin (P.W.11) and Meemdad. F. C (P. W.13) stated about the recoveries of pistols effected from the appellants during the investigation of this case. Dr. Aal‑i‑Rasul (P.W.8) provided the medical evidence. Muhammad Sharif, Inspector/S.H.O. (P.W.14) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

8. In their statements recorded under section 342, Cr.P.C, the appellants and their co‑accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to take any statement on oath under section, 340(2), Cr.P.C. and they also did not produce any witness in their defence.

9. At the conclusion of the trial the learned Trial Court acquitted Khurshid Alam accused but the prosecution's case against the present appellants was found to have proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court.

10. In support of this appeal it has been argued by the learned counsel for Mehfooz Alam appellant that the prosecution had failed to prove its case against the said appellant beyond reasonable doubt. The learned counsel appointed at the State expense to represent Fayyaz Khaliq alias Pappu appellant has not entered appearance before this Court and while awaiting his appearance we had required the learned counsel for Mehfooz Alam appellant to commence reading of the evidence. The learned counsel for Fayyaz Khaliq alias Pappu appellant did not enter appearance till we concluded reading of the record and hearing of arguments of the learned counsel for Mehfooz Alam appellant as well as the learned counsel for the State and, therefore, in view of the judgment that we proposed to deliver after hearing the said learned counsel we decided not to adjourn the hearing of this appeal so as to await appearance of the learned counsel for Fayyaz Khaliq alias Pappu appellant. The learned counsel for the State has argued that the prosecution had proved its case against both the appellants beyond reasonable doubt and, therefore, their convictions and sentences recorded by the learned Trial Court do not warrant any interference by this Court.

11. After hearing the learned counsel for tote parties and going through the record we have noticed that the F.I.R. in this case had been lodged with reasonable promptitude and Mehfooz Alam appellant had been specifically nominated therein as the principal perpetrator who had caused the solitary, and fatal fire‑arm injury on the person of Muhammad Fayyaz deceased. Although the occurrence in this case had taken place during a night yet in the F.I.R. It had specifically been mentioned that an electric bulb was alight at the relevant time and presence of two such bulbs stood duly depicted in the site‑plan (Exh.P.C/1) Ghulam Sarwar complainant (P.W.9) was a natural witness of the occurrence as the occurrence had taken place in his own house. The complainant had also sustained fire‑arm injuries on his person during the said incident and, therefore, his presence at the spot as the relevant time could not be disputed with any degree of seriousness. Muhammad Amir (P.W.10) resided in the house contiguous to the house of his brother i.e. Ghulam Sarwar complainant and his claim regarding sleeping in the compound of his brother's adjoining house in the company of their common guest i.e. their cousin namely Muhammad Siddique has not been found by us to be either unnatural or unusual. Although Ghulam Sarwar complainant happens to be the father of Muhammad Fayyaz deceased and Muhammad Amir (P.W. 10) is a brother of the complainant and a paternal uncle of the deceased yet we have found that the said witnesses did not have any serious, motivation to falsely implicate Mehfooz Alam appellant in a case of this nature. Both the said witnesses had made consistent statements before the learned Trial Court qua Mehfooz Alam appellant and their credibility could not be shaken during their cross‑examination. The forthrightness of these witnesses and the straightforward statements made by them before the learned Trial Court have impressed us and we have found them to be reliable enough to place our implicit reliance upon them vis‑a‑vis Mehfooz Alam appellant.

12. The motive set up by the prosecution was based upon a criminal case lodged by Muhammad Fayyaz deceased against Mehfooz Alam appellant in respect of an alleged sodomy committed by the said appellant upon the deceased about 9/10 months prior to the present occurrence. Although in his statement recorded under section

342. Cr.P.C. Mehfooz Alam appellant had denied such a motive and had maintained that no such criminal case had been registered in the past yet Fayyaz Khaliq alias Pappu appellant had accepted registration of such a criminal case as a fact. Even the trend of cross‑examination of the eye‑witnesses produced by the prosecution shows that the defence has accepted registration of the earlier case of sodomy against Mehfooz Alam appellant. In these circumstances the motive set up by the prosecution has been found by us to have been amply proved as the same has not even been seriously questioned by the defence. The said motive, thus, provided corroboration to the ocular account vis‑a -vis Mehfooz Alam appellant.

13. During the investigation of this case two crime empties had been recovered from the place of occurrence and they had been sent to the Forensic Science Laboratory prior to recovery of pistol from Mehfooz Alam appellant. Subsequently the pistol recovered from Mehfooz Alam appellant was also sent to Forensic Science Laboratory and vide report (Exh.P.P) the Forensic Science Laboratory had found the pistol‑recovered from Mehfooz Alam appellant to be wedded with a crime‑empty. The pistol recovered from Fayyaz Khaliq alias Pappu appellant, however, was not even sealed into a parcel and admittedly the same was never sent to the Forensic Science Laboratory for its matching with the. crime empties. In these circumstances the recovery of weapon from Mehfooz Alam appellant had provided independent corroboration to the ocular account as far as Mehfooz Alam appellant was concerned but no such corroboration was available vis‑a‑vis Fayyaz Khaliq alias Pappu appellant.

14. The medical evidence provided by Dr. Aal‑I‑Rasul (P.W.8) confirmed the ocular account and, thus, provided support to the same. The discussion made above shows that the ocular account furnished by Ghulam Sarwar complainant (P.W.9) and Muhammad Amir (P.W.10) had received corroboration from the motive and the recovery and the medical evidence had also provided sufficient support to the same as far as the prosecution's case against Mehfooz Alam appellant is concerned. However, it has been noticed by us that Fayyaz Khaliq alias Pappu appellant had admittedly not caused any injury to Muhammad Fayyaz deceased; the injuries sustained by Muhammad Fayyaz deceased and Ghulam Sarwar complainant (P.W.9) had been caused by a similar weapon; it could well be that the injuries sustained by the complainant had been caused by Mehfooz Alam appellant when the complainant had grappled with him; Fayyaz Khaliq alias Pappu appellant was not directly connected with the motive set upon by the prosecution as he was not an accused person in the criminal case regarding sodomy lodged by Muhammad Fayyaz deceased against Mehfooz Alam. Fayyaz Khaliq alias Pappu appellant was a witness for the defence in the abovementioned sodomy case and, therefore, the complainant party could have a reason to entangle him in the present murder case: and the pistol allegedly recovered from this appellant had admittedly not matched with any crime‑empty. We have, thus, felt that the independent. corroboration available to the ocular account in the case of Mehfooz Alam appellant is surely not available in the case of Fayyaz Khaliq alias Pappu appellant. We have, therefore, decided to extend the benefit of doubt to Fayyaz Khaliq alias Pappu appellant while finding the case against Mehfooz Alam appellant to have been proved beyond reasonable doubt.

16. For what has been discussed above this appeal is partly allowed to the, extent of Fayyaz Khaliq alias Papu appellant, his convictions and sentences recorded by the learned Trial Court are set aside and he is acquitted of the charge. He shall be released from jail forthwith if not required in any other case. However, this appeal is dismissed to the extent of Mehfooz Alam appellant whose convictions and sentences recorded by the learned Trial Court are hereby maintained and ‑upheld with the modification that in case of his failure to pay the amount of compensation he shall undergo simple imprisonment for six months instead of rigorous imprisonment for six months as ordered by the learned Trial Court. H.B.T./M‑1276/L Order accordingly.