1999 PLP 2940 (MLD)

(iii) A gutter shaped wound measuring 2 c.m. x 1/2 c.m. x 1/2 c.m. on left front of chest. It was horizontally placed 3 c.m. above left nipple. (iv) Nine fire-arm wounds of entry on left lateral aspect of middle of upper arm 8 c.m. above the lateral condyle of humerus. Each wound measuring 1 c.m. x 1 c.m. x DNP with inverted circular margins. They lie in area of 6 c.m. x 6 c.m. (v) Seven fire-arm wounds of exit each measuring 2 c.m. x 2 c.m. on left medial aspect of left middle of upper arm margins were reverted. They lie in an area of 8 c.m. x 8 c.m. (vi) Fire-aim wound of entry measuring 1 c.m. x 1 c.m. x DNP on right side of lower abdomen on lateral aspect 5 c.m. above the righter anterior superior illac spine. The margins of the wound were circular and inverted. (vii) A fire-arm wound of exit measuring 1-1/2 c.m. x 1-1/2 c.m. with Everted margins on right back of lower abdomen 3 c.m. right to vertebral columns 14 c.m. lateral and back to right anterior, superior iliac spine. (viii) Fire-arm wound of entry l c.m. x I c.m. x DNP on right lumber region 8 c.m. above and lateral to injuries Nos. 7 and 8 c.m. lateral to vertebral column. The margins were inverted and circular in shape. (ix) Fire-arm wound of entry measuring 1 c.m. x 1 c.m. x DNP on left lumber region 9 c.m. later to vertebral column and 20 c.m. below the inferior angle of scapula, left. The margins were circular and inverted. (x) A superficial abrasion measuring 1 c.m. x 1 c.m. on left dorsum of hand towards the left little finger 2 c.m. below the left wrist joint.

8. On dissection of left upper arm, Dr. Tahir Rashid found comminutted fracture of left humerous with damage to all the underlying vessles nerves and muscles. The fore-arm was hanging because of badly damaged left upper arm middle part, P.W.5 further stated that four metallic pieces after piercing the chest cavity on left front chest had entered into the pleural cavity through 4th, 5th and 6th inter-costal spaces and ruptured the left lung. One metallic piece was removed subcutaneously and two metallic pieces were removed from the chest cavity. One metallic piece-ruptured the opposite side of the pleaural cavity and perforated the right lung before rupturing the left ventricle of heart It damaged the heart and right lung and lied in the right lung which-was removed. Walls, ribs and cartilages damaged to 4th, 5th and 6th intercostal spaces, Pleaurae right and left lungs were damaged. Pericardium and heart were empty but damage was caused to the left ventricle of the heart. One metallic piece pierced the 12th thorazic vertebrae and damaged the spinal cord.

9. In the opinion of Dr. Tahir Rashid (P.W.5) all the injuries were ante mortem, caused by fire-arms except injury No.(x) which was caused by blunt edged weapon. Injuries Nos. (i) and (ii) were sufficient to cause death due to injury to the heart. Both the lungs led to haemorrhage and shock in the ordinary course of nature. All other injuries were contributory to death except injuries Nos. (iii) and (x).

10. Constable Waseem Asghar (P. W.6) had taken the dead body of Muhammad Razzaq deceased to A.B.S. Hospital, Gujrat, for post-mortem examination on the 28th June, 1989. On the following day, Medical Officer handed over him the last worn blood -stained clothes of the deceased and sealed phial containing metallic pieces which he delivered to the Investigating Officer vide recovery memo. Exh. PD. Allah Ditta (P.W.7), a maternal uncle of the deceased, testified that he had identified the dead body of Muhammad Razzaq. Ijaz Ahmad (P.W.8), elder brother of deceased Muhammad Razzar, deposed that about 4-5 months back prior to the occurrence, he brought blades of fodder cutter machine from Rehmat Ullah son of Mian Khan and til"1 them with his fodder machine. After sometimes, Nawazish Ali and the present appellant came to their dera and asked for return of the baldes but Muhammad Razzaq deceased refused to do so, whereupon an altercation ensued and Nawazish Ali and Shafaqat Ali left the place. P.W. 5 and Muhammad Razzaq (deceased), however, followed them but Nawazish Ali and the present appellant bolted themselves inside their house. Ijaz Ahmad (P.W.8) and the deceased challenged Nawazish Ali and Shafaqat Ali to come out of the house and face ,them. In the meanwhile, several persons gathered at the spot and called them off After two days Mehdi Khan and Muhammad Sadiq, the maternal uncles of the appellant, came to the village and got the matter amicably settled. But Shafaqat Ali and Nawazish Ali kept the grudge and killed Muhammad Razzaq because of such grudge. Muhammad Nazir (P.W.9) who is also the uncle of Muhammad Razzaq deceased supported the averments made by him in the F.I.R.

11. Muhammad Bashir (P. W.10) stated that on the day of occurrence at about 4.30 p.m. he alongwith Muhammad Siddique was corning towards the village and saw Shafaqat Ali and Nawazish Ali in front of the house of Bashir son of Rehmat Ullah. At that time, Muhammad Razzaq reached there riding on a cycle. Shafaqat Ali appellant who was armed with a carbine fired at Muhammad Razzaq hitting him on the left upper arm and left side of the chest. Muhammad Razzaq fell down from the cycle and then ran towards east in the barely field. Both the accused followed him and Nawazish Ali fired indiscriminately upon the deceased hitting him on his right flank, back belly and the chest. Both the accused thereafter ran from the spot. During cross-examination, he admitted his relationship with P.Ws. and that the appellant had earlier injured his nephew and in the said case Muhammad Nazir and Siddique (P.W.4) had appeared as witnesses against the appellant. Faiz Ahmad (P.W.11) deposed about verifying the recovery Exhs. PE and PF regarding recovery of cycle belonging to Muhammad Razzaq and the blood-stained earth (p.5) from the place of occurrence.

12. Nazir Baig, S.I. (P.W.12) deposed that after the transfer of S.H.O. Police Station Saddar, Jalalpur Jattan, he took up the investigation of the case from 18-7-1989 onward and caused arrest of Shafaqat Ali and Nawazish Ali accused in the case on the 21st July, 1989. At the instance of Shafaqat Ali accused a carbine P-6 was recovered from his house vide recovery memo. Exh. PG. During cross-examination, he, however, admitted that he had not called any person from the neighbourhood at the tithe of recovery of the carbine and that the recovery witnesses had accompanied him to the place of recovery from the police station. He also admitted that during the investigation many persons, including residents of the houses adjoining to the place of occurrence and village had appeared before him and it came into his knowledge that ' in fact the deceased was done to death at night time by unknown persons' and that the accused in the case had been involved only on the basis of previous enmity'. Basharat Hussain Shah, ASI (P.W.13) testified only that he had brought Shafaqat appellant who was confined to Camp Jail, Lahore, Gujrat on 3-3-1992. Mustahsam, a foot constable (P. W.14), deposed about execution of proclamation (Exh.14-C) regarding apprehension of the appellant.

13. Muhammad Nawaz, D.S.P., appearing as P.W. 15 stated that on 26-7-1989, while he was posted as Inspector/S.H.O., Police Station Saddar, Jalalpur Jattan, he had carried out the investigation in the present case and had interrogated the appellant when he was in police custody. On the 28th July, 1989, the appellant had also led the police party to the recovery of a .32 bore revolver (Exh.P6) from his Dera. During cross-examination, he deposed that prior to entrustment of the investigation to him, the investigation was carried out by Muhammad Ashraf, Inspector/S.H.O. and Mirza Muhammad Nazir, S.H.O. and after his (P.W.15) transfer, the case was investigated by Ahmad Zaki, DSP and Abdul Majid Kiani D,S.P., Gujrat. In all these investigations, 'version of the prosecution was found false so far as the case of Nawazish Ali accused was concerned'. Ch. Muhammad Ashraf, a retired Inspector/S.H.O. (P.W.16), had initially investigated the ease and completed the formalities in particular, he took into possession the blood-stained earth and blood-stained clothes of the deceased, caused preparation of the sealed parcels thereof for examination by the Chemical Examiner and got the post-mortem examination carried out by the concerned Medical Officer puring cross-examination, he stated that in course of the investigation, 'the version of the complainant side was found false that the murder was committed by two persons'. But only Nawazish Ali accused was declared innocent and Shafaqat Ali was found guilty. He, however, admitted that no blood was found at the place where the deceased was initially injured by the accused.

14. The statement of the appellant was also recorded under section 342, Cr.P.C. wherein he denied the charge. He also denied the recovery of carbine P-6 and revolver P-7 from him. Initially, an objection was raised that this statement of the appellant was not signed by the learned Trial Court. In view of the said objection of the appellant, learned Additional Sessions Judge, Gujrat, was summoned in the Court. He explained that the High Court had directed for expeditious disposal of the case and because of rush of the proceedings, he had omitted to sign the statement. At the time of hearing of appeal, learned counsel for the appellant did not press the issue. It was, however, vehemently claimed by the learned counsel that both the eye-witnesses i.e., Muhammad Nazir P.W.9 and Muhammad Bashir P.W.10 were closely related to the deceased and inimical to the appellant. The statements of these witnesses were also not corroborated by the medical evidence, hence, no credence could be given to their testimony. He also referred to the statements of the Investigating Officers claiming that during the investigation it was clearly found out that the prosecution version was false and the appellant and Nawazish Ali accused (since acquitted) were roped in only because of previous enmity between the parties. The learned counsel representing the appellant also pointed out various defects in the investigation, particularly its failure to produce the report of Serologist and the Ballistic Expert for verification of the blood on the alleged blood-stained earth and clothes and also for distinguishing the varies of wounds which were allegedly caused by two different weapons.

15. Mian Sher Aalam, Advocate, counsel for the complainant and Mr. Abdul Qayyum Anjum, Advocate for the State opposed these contentions claiming. that the F.I.R. was recorded immediately after the occurrence. There was no inconsistence between ocular account and the medical evidence. Nor the appellant had pointed any material contradictions in the statements of the eye-witnesses. It was also urged that blood-relationship of witnesses with the deceased was not a disqualification. It was further contended on behalf of the complainant who is also petitioner in two revision petitions that acquittal of Nawazish Ali accused was not justified and that he should have been convicted under section 302 of the Pakistan Penal Code and sentenced to death.

16. Nevertheless, no substantive defect was pointed out in the findings of the learned Additional Sessions Judge, dated 29-9-1991, whereby he had acquitted the said Nawazish Ali. The- eye-witnesses and other material witnesses in both the trials were the same. In the earlier trial in which only Nawazis Ali was tried, the prosecution version was not believed. Meaning thereby that the eye-witnesses who, in the trial of Nawazish Ali, were not believed to be-the truthful witnesses, cannot be said with certainty that they (P.Ws. 9 and 10) had told the truth during the trial of present appellant relating to the same incident.

17. There is a unanimity of opinion that the present appellant had fired once only and the bullet had hit at the back of left arm bi-ceps. Both the witnesses have claimed that this fire shot had pierced through bi-ceps and pellets therefrom caused injury on the chest of Muhammad Razzaq. But according to post-mortem examination and the opinion of Dr. Tahir Rashid (P.W.5) injuries Nos.(iv) and (v) as specified in paragraph 7 above relate to the injury caused at the arm of Muhammad Razzaq deceased. On the other hand, the death of Muhammad Razzaq deceased had been caused due to injuries received by him at his chest. Dr. Tahir Rashid, P.W.5, clearly stated during his examination that injury No.(v) had no re-entry wound on the body of the deceased. Meaning thereby that the bullet which had hit the bi-ceps of the left arm of Muhammad Razzaq deceased had not entered therefrom to the chest of the deceased nor it had caused the fatal injury. It is in the statements of the eye-witnesses that the appellant had fired upon the deceased from the distance of 3/4 feet, but there was no blackening of the wound reported in the post-mortem examination of the body of the deceased.

18. According to the prosecution; two different types of fire-arms i.e., carbine and a pistol were used for causing death of Muhammad Razzaq deceased, but surprisingly -it appears that the pellets and empties were not sent to the Ballistic Experts for expert opinion as to bullet of which fire-arm had actually caused the death of Muhammad Razzaq deceased. In fact, no evidence has been brought on the record of any empty was recovered from the place of occurrence.

19. It is the case of the prosecution that the present appellant had hit Muhammad Razzaq deceased with his carbine at the road side. On the other hand, it was as stated by Ch. Muhammad Ashraf (P.W.16) that no blood was found at the place where the deceased received the first injury and had thereupon fallen down from the cycle. In view, thereof, there is a clear inconsistence of the medical evidence with the ocular account produced by the prosecution.

20. It is an admitted fact that the occurrence had taken place near an abadi where there were several houses having a population of 7/8 hundred people but surprisingly no person from the abadi was produced in support of the prosecution version. Ch. Muhammad Ashraf (P.W.16), the Investigating Officer, also admitted that at the time when he reached at the spot on receipt of the information of the incident, several persons had gathered there and he had recorded their statements under section 161 of the Cr.P.C. But surprisingly no such person was produced as a witness nor any reason has been given as to why those persons who were independent witnesses were kept away from appearing before the Court. Even the inmates of the house of Bashir son of Rehmat Ullah in front of whose house occurrence had taken place were not produced.

21. The same principle applies to the recovery of carbine P-6 and Pistol P-7 as none of the residents of the locality was asked to witness the recovery of these Articles in clear disregard of the provisions of section 103 of the Code of Criminal Procedure which fact itself makes the recovery of the weapons doubtful. According to the statement of the Investigating Officer (P.W.16), the deceased was lying dead in the barely field: The height of the barley crop was about 3 feet and the witnesses had seen the occurrence from outside the field. In the process, quite a portion of the crop must have been trampled, but admittedly no reference to that effect was made by the Investigating Officer in his inspection note. On the other hand, he admitted during cross-examination that no blood was found on any barley plant. When according to the Investigating Officer, no blood was found at the place where the deceased had fallen after receiving the first shot on the road. nor any blood was found at the barely field, the whole procedure of collection of blood-stained, earth appears to be false and concocted. These discrepancies clearly lend support to the fact that the occurrence had not taken place in the manner as has been putforth by the prosecution and the two eye-witnesses, namely, Muhammad Nazir (P.W.9) and Muhammad Bashir (P.W.10). The motive also appears to be doubtful as the altercation in respect of blades of fodder-cutting machine had taken place about 4/5 months back to the occurrence. It is obviously quite 'a long time to take revenge of someone's insult.

22. In view of the above discussion, it is clear that the prosecutions has failed to prove the case against Shafaqat Ali appellant beyond any doubt. Consequently, the judgment, dated 13-8-1992 is set aside and giving the benefit of doubt to Shafaqat Ali, appellant, he is thus, acquitted of the charge. The appeal is accordingly accepted. The appellant be released forthwith if he is not required in any other case. In consequence thereof, the Criminal Revision No.658 of 1992 entitled Muhammad Nazir v. Shafaqat Ali, is dismissed.

23. Likewise Criminal Revision No.742 of 1991 is also dismissed as the petitioner/complainant has failed to bring any defect in the finding of the learned Additional Sessions Judge, dated 29-9-1991, whereby Nawazish Ali respondent was acquitted of the charge of causing death of Muhammad Razzaq, deceased. Q.M.H./5.209/L Appeal accepted.