1999 PLP 2445 (MLD)

(g) Criminal trial

Recovery

No empty was recovered and unless the same matched with the pistol, the recovery of pistol alone lost significance. Mian Khurshid Alam Ramay for Appellant. Syed Ali Raza for the State. Date of hearing: 18th August 1997. This appeal is directed against judgment dated 8-8-1992 passed by Mr. Khalid Akhtar, Additional Sessions Judge, Depalpur whereby Muhammad Afzal appellant was convicted under section 302, P.P.C. and was sentenced to imprisonment for life with a fine of Rs.20,000 and in default of payment thereof to undergo R.I. for two years. His co-accused Muhammad Suleman was, however, acquitted of the charge against him.

2. Briefly, the prosecution case as narrated in the F.I.R. is that on 10-4-1990 at about 7-30 p.m. Bhai Khan complainant P.W.3 was sitting on his Dera alongwith Allah Ditta and Muhammad Ali. Suleman accused called Iqbal deceased who proceeded towards him. Suddenly, Afzal Appellant took out pistol from the fold of his loin cloth and fired a shot hitting the deceased on the right side of the neck near right ear. Pistol P-4 was secured into possession vide memo. Exh.P.E. On conclusion of the investigation challan was submitted against the appellant and his co-accused Muhammad Suleman, who were tried by Mr. Khalid Akhtar, Additional Sessions Judge, Okara Camp at Depalpur.

4. The prosecution examined seven witnesses in all to bring home the guilt of the accused persons. Bhai Khan complainant P.W.3 and Allah Ditta P.W.4 were examined as eye-witnesses. Dr. Nasim Ahmad Chaudhary conducted the post-mortem examination on the dead body of lqbal deceased and he found the following injuries on his person:

"1. 7 fire-arm wounds closely aggregated in an area 5-1/2 c.m. x 5 c.m. on the outer aspect of right side of upper part of the neck close to the right ear lobule. Margins were inverted and the rim of blackening present around the wound margins. The upper four wounds coales in pairs labelled A and B measuring 1-1/2 c.m. x 1-1/2 and 2 c.m. and 1 c.m. respectively. Wound C measures 1 c.m. x 1 c.m. situated 1-1/2 c.m. below the wound B 3 c.m. anterior to it is the wound deep measuring 1 c.m. x 3/4 c.m. below and behind 1/1-4 was the wound E measuring 3/4 x 3/4 c.m. On exploration of area there was clotted blood under the skin and within the neck structures of right side of the neck. All the intervening muscles and vessels were badly damaged. Second and third survical virtibra were fractured." P.Ws. l and 2 are formal witnesses. P.W.6 is Patwari who prepared the sit-plan Exhs.PG. and P. G./1 on the pointation of P. Ws. in the scale of 1"=40 Karams. P.W.3 Bhai Khan complainant reiterated the statement as made by him in the F.I.R. Exh.P.B. He was subjected to lengthy cross-examination which will be discussed while adjudging appellant's contentions. P.W.4 is Allah Ditta, second eye-witness who has made statement in line with the P.W.3. He was also subjected to cross-examination which will be discussed alongwith the statement of P.W.3. P.W.7 is the Investigating Officer, salient features of whose statement have been referred above. Lastly, the Public Prosecutor before the close of the prosecution case tendered in evidence report of chemical examiner Exh.PJ. and that of Serologist Exh.P.K. and closed the prosecution case.

5. After the close of prosecution case the prosecution version was put to appellant as well as to his co-accused Muhammad Suleman under section 342, Cr.P.C. Muhaanmad Afzal denied the allegations against him and stated that he was innocent and it was a blind murder. The F.I.R. was lodged after making preliminary enquiry and investigation and he was implicated on account of enmity in-between the parties. Similar statement was made by Muhammad Suleman (who has since been acquitted) and the same is not of much importance in the instant appeal.

6. It has been argued on behalf of the appellant that it was in fact a blind murder and the appellant was implicated merely on account of suspicion and enmity in-between the parties; that P.W.3 is a brother of the deceased and P.W.4 is brother in-law (sister's husband) of the deceased and that of the complainant. It is further submitted that enmity in-between the parties is admitted by the complainant himself, therefore, the statements of eye-witnesses cannot be relied upon unless material corroboration is available on the file. Since the same is lacking, therefore, appellant's conviction cannot be upheld and maintained. The motive as alleged by the prosecution in the present case is not acceptable and also that the appellant is not directly connected with the motive. According to the prosecution 12/13 years ago nephew of lqbal deceased had committed murder of one Hafiz who was uncle of Afzal appellant. Hafiz had his brothers and sons and if at all there was any grouse or grievance his brothers and sons could have taken revenge. Afzal appellant at the time of said occurrence was only 3 or 4 years old and as such there was no reason for him to avenge the murder of his uncle committed and long time before. Lastly, it is submitted that the appellant at the time of occurrence was 16-1/2 years old and was a student, Certificate Exh.D.E. was produced in that behalf. It was, therefore, prayed hat the appellant be acquitted of the charge against him.

7. The learned counsel for the State has, however, opposed the prayer and submitted that both P.W.3 and P.W.4 have supported the prosecution version which is supported by the medical evidence and that the learned Trial Judge has erroneously disbelieved the motive against the appellant.

8. I have perused the record and have considered the arguments minutely. P. W.3 is a complainant and eye-witness of the occurrence. During the cross -examination he has admitted that actually the case was registered on the following day of murder meaning thereby that the occurrence took place on 10-4-1990. The case was registered on 11-4-1990. On the preceding night complainant merely informed the police that his brother had been murdered. It means that the- names of the accused persons were not disclosed. On the following day he was called to the police station at about 10-00 a:m. At that time both the accused persons were in custody of the police and then the case was registered. In view of this unambiguous statement made by the complainant the fact that matter was promptly reported and F.I.R. was recorded at 8-30 p.m. on 10-4-1990 is strongly contradicted. The fact that the case was registered on the following day also finds support from the fact that dead body was despatched to the hospital on 11-4-1990 in the morning, as is evident from the statement of the doctor. The appellant's contention is further strengthened by the fact that when the investigating officer prepared inspection notes the names of the accused persons were not mentioned because according to him the names of the assailants were not known at that time. He further admits that the names of the witnesses and accused were not mentioned in the site plan Exh.P.G. because the witnesses did not disclose before him as to where they were present at the time of occurrence. In answer to a suggestion that accused have been arrested prior to the registration of the case he denied the suggestion but his statement contradicts the statement made by P.W.3 as indicated above. Taking up these facts together only one inference can be drawn that the complainant or the P.W. had not seen the occurrence and did not disclose the names of the accused persons till the following day. The time of lodging of F.I.R. shown by the police is therefore, negated by the statement made by the complainant himself in Court on solemn affirmation.

9. As regards enmity in-between the parties although it stands admitted in the F.I.R. itself yet a specific question was put to Allah Ditta P.W.4 who expressly admitted hat it was correct that they were inimical towards the accused since murder of Hafiz uncle of Afzal. The relationship of the witnesses inter se as well as towards the deceased is also admitted. As already observed P.W.3 is brother of the deceased and P.W.4 is brother-in-law. Being close relations of the deceased and inimical to the appellant both the witnesses come within the category of interested witnesses. No safe reliance can be placed on the testimony of interested witnesses unless the same is materially corroborated by some reliable evidence or through some credible material. In the present case, the prosecution sought corroboration by way of evidence of motive and medical evidence. The motive has been disbelieved by the learned trial Judge and the finding does not appear to be erroneous. Admittedly, the previous murder took plate about 12/13 years ago when the appellant was only 3/4 years old. The appellant is also not directly connected with the motive as such the motive does not provide necessary corroboration. As far as evidence of recovery of pistol is concerned the same is inconsequential because no empty was recovered and unless the same matched with the pistol the recovery of pistol alone looses p significance. The medical evidence although shows that the deceased received I fire-arm injuries but two important aspects have to be noted. Firstly, according I to the prosecution deceased Iqbal was just proceeding towards the appellant and his co-accused when he was suddenly fired at. In that event, it was improbable to receive injury at the back of the right ear. Further, the description of injury how that the same was caused from very close range because there was rim of blackening. The prosecution witnesses although have stated that injury was caused by fire-arm but have not been able to specify as to from how much distance and in what manner the injury was received. Unless the same is specified by the witnesses mere statement disclosing that injury was caused by fire-arm is not sufficient and does not lend support to the prosecution version. Had the witnesses stated that the injury was caused from close range and at that time the deceased had changed his posture then the same would be treated and accepted as corroborative evidence.

10. The net result of the above discussion is that the eye-witnesses were admittedly inimical and, as such, being interested witnesses did require corroboration which is unfortunately lacking. Apart from that as discussed above the statements are discrepant on material points with regard to the presence of the accused and witnesses and above all the prosecution case has become extremely doubtful when the complainant himself stated that the case was registered on the next day and the names of the accused or witnesses were not even mentioned in the site plan or inquest report. The benefit, as such, has to be extended to the accused persons. The prosecution, as such, has not been able to discharge its onus. The appeal is, therefore, allowed and the appellant is acquitted of the charge against him.

11. He shall be released forthwith if not required in any other case. Q.M.H./M-672/L Appeal accepted.