2005 PLP 2618 (YLR)

Muhammad Akbar and Muhammad Hayat appellants were convicted for an offence under section 302(b), P.P.C. read with section 34, P.P.C. vide judgment, dated 15-3-2003 rendered by the learned Additional Sessions Judge, Nankana Sahib, District Sheikhupura and were sentenced to imprisonment for life each and to pay a sum of Rs.50,000 each to the heirs of Muhammad Hussain deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months each. The benefit under section 382-B, Cr.P.C. was extended to the appellants. Through the same judgment the learned trial Court acquitted five co-accused of the appellants namely Anwar, Muhammad Ali, Sarfraz alias Sharfa, Shahadat and Allah Ditta were acquitted by the learned trial Court. The above-mentioned convicts-appellants have challenged their convictions before this Court through the present appeal.

2. According to the prosecution's case Muhammad Hussain deceased was done to death and three others namely Ilyas, Mst. Maryam Bibi and Zafar Iqbal were injured at about 10-30 a.m. on 21-6-2000 in a paddy field in Chak No. 22/75 situated within the area of Police Station Syedwala, District Sheikhupura F.I.R. No. 141 was registered in respect of that incident at the instance of Muhammad Aslam complainant at Police Station Syedwala at 1-15 p.m. on 21-6-2000 for offences under sections 302/324/148/149, P.P.C. During the investi gation sections 337-F(iii) and 337(v), P.P.C. were added to the F.I.R. According to the F.I.R. at the time of the alleged occurrence the members of the complainant party were busy in irrigating their field and sowing paddy therein when the appellants and their five co-accused arrived at the scene and tried to abduct a lady namely Mst. Sardaran belonging to the complainant party. Upon a resistance put up by the complainant party in that regard the appellants and their co-accused allegedly launched an assault upon the complainant. It was alleged in the F.I.R. that Muhammad Akbar appellant caused a fire-arm injury in the abdomen of Muhammad Hussain deceased, Muhammad Hayat appellant caused a fire-arm injury on the left thigh of the deceased. Anwar accused caused a fire-arm injury on the left thigh of the deceased. Muhammad Ali accused caused a fire-arm injury on the right wrist of Mst. Maryam Bibi P.W., Sarfraz alias Sharfa accused caused a fire-arm injury on the left elbow of the deceased and another fire-arm injury on the right leg of Zafar Iqbal (P.W.6). Shahadat accused raised a Lalkara and Allah Ditta accused caused a fire-arm injury accused raised a Lalkara and Allah Ditta accused caused a fire-arm injury on the right upper arm of Ilyas P.W. The motive set up in the F.I.R. was that the accused party wanted the Rishta of Mst. Sardaran for Muhammad Hayat appellant but that proposal of marriage was objected to by Muhammad Hussain deceased.

3. During the investigation of this case the dead body of the deceased was got subjected to post-mortem examination the injured witnesses were got medically examined the place of occurrence was inspected, statements of witnesses were recorded, the appellants and their co-accused were arrested and some recoveries were effected from different accused persons. Upon completion of the investigation a challan was submitted before the learned trial Court.

4. At the commencement of the trial the learned trial Court framed a charge against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.

5. During the trial the prosecution produced fifteen witnesses in support of its case against the appellants and their co-accused. The ocular account was furnished by Muhammad Aslam complainant (P.W.5) and Zafar Iqbal (P.W.6). Both the said witnesses also deposed about the motive. Ahmad Ali (P.W.8) stated about various recoveries effected from different accused persons during the investigation of this case. The medical evidence was provided by Dr. Khalid Mehmood (P.W.7). Mehmood Mustafa, A.S.-I. (P.W.13), Muhammad Waqar Abbas, A.S.P. (P.W.14) and Muhammad Akram, S.-I. (P.W.12) stated about the various step taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.

6. In their statement 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 make statements on oath under section 340(2), Cr.P.C. and did not produce any witness in their defence.

7. At the conclusion of the trial the learned trial Court acquitted five co-accused of the appellants but after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt it convicted and sentenced the appellants as mentioned and detailed above. Hence, the present appeal before this Court.

8. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The learned counsel for the appellants has taken me through the entire evidence available in this case and has argued that the prosecution had miserably failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the appellants guilt beyond reasonable doubt and therefore, the convictions and sentences of the (sic) interference by this Court.

9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by me that as many as five co-accused of the present appellants had been acquitted by the learned trial Court and the State or the complainant party have failed to challenge the said acquittal through any appeal. Both the eye-witnesses produced in this case by the prosecution namely Muhammad Aslam complainant (P.W.5) and Zafar Iqbal (P.W.6) had categorically deposed that all the said acquitted accused persons had also taken an active part in the main occurrence along with the present appellants and the said eye-witnesses had attributed specific fire-arm injuries to four of those five acquitted accused persons not only on the body of the deceased but also on the bodies of different prosecution witnesses. The acquittal of the said accused persons and failure of the prosecution to challenge their acquittal have created serious doubts in respect of credibility of the eye-witnesses produced by the prosecution. It is settled law that if the eye-witnesses are disbelieved against some accused persons who had been attributed specific injuries then such eye-witnesses cannot be believed against the other accused persons unless they receive independent corroboration in that regard.

10. According to the prosecution the incident in issue had taken place when the accused persons had tried to abduct Mst. Sardaran, a lady belonging to the complainant party at the spot but the rough site-plan (Exhibit-PQ) prepared by the Investigating Officer as well as the formal site-plan (Exhibit-PK) prepared by a Patwari did not even mention the presence of Mst. Sardaran at the place of occurrence. This circumstance has put me to further caution regarding credibility of the prosecution's story. Muhammad Aslam complainant (P.W.5) had maintained before the learned trial Court that he had left the dead-body of Muhammad Hussain deceased at the spot and had then reported the matter to the police and after registration of the F.I.R. at the Police Station the local police had visited the place of occurrence and had dispatched the dead body to the mortuary from the spot. Even Mehmood Mustafa, A.S.-I. (P.W.13) the Investigating Officer, had stated before the learned trial Court on the same lines. However, both of them had been given a lie in this regard by Zaka Ullah, FC P.W. 10 who had clearly stated before the learned trial Court that the dead-body of the deceased had been brought to the Police Station and then the FIR. R. was registered and the dead-body was thereafter dispatched to the mortuary from the Police Station. This shows that the F.I.R. in this case had not been registered in the circumstances canvassed by the prosecution and this factor detracts not only from the veracity of the F.I.R. but also from any credibility to be attached to the statement made by Muhammad Aslam complainant (P.W.5) before the learned trial Court. Zafar Iqbal (P.W.6) had claimed that he was an injured witness and he had received a fire-arm injury on his right leg at the hands of Sarfraz alias Sharfa accused during the same incident. The said accused person had been acquitted by the learned trial Court and his acquittal has not been challenged before this Court. The medical evidence showed that the injury sustained by Zafar Iqbal (P.W.6) was not a fire-arm injury and thus, the learned trial Court had found the statement of this witness to be doubtful. After assessing the statements made by both the above-mentioned eye-witnesses the learned trial Court had itself concluded that the prosecutions' story was full of "serious doubts". It may be pertinent to mention here that two injured eye-witnesses namely Ilyas and Mst. Maryam Bibi had not been produced by the prosecution before the learned trial Court and two other independent eye-witnesses namely Yaqoob and Mansha had been given up by the prosecution as having been won over. This shows that as many as four eye-witnesses being relied upon by the prosecution had not been produced by it before the learned trial Court and the law stipulates that in such a situation this Court is to presume that if the said witnesses had been produced before the learned trial Court then they would have deposed against the prosecution's case. All these factors render the ocular account furnished in this case by Muhammad Aslam complainant (P.W.5) and Zafar Iqbal (P.W.6) unworthy of implicit reliance.

11. Muhammad Aslam complainant (P.W.5) and Zafar Iqbal (P.W.6) had also deposed about the motive before the learned trial Court but both of them had failed to give any specific detail regarding the same. Muhammad Aslam complainant had gone on to state that the proposal regarding marriage of Mst. Sardaran with Muhammad Hayat appellant had not been discussed in his presence. He had further stated that although Mst. Sardaran belonged to his brotherhood yet he could not tell the exact relationship. The motive set up by prosecution was, thus, quite vague and unspecific and it was for this reason that the learned trial Court itself had concluded that there was no serious dispute or enmity between the parties. The motive had, thus, remained far from being conclusively established.

12. The alleged recovery of guns from both the appellants during the investigation of this case was legally inconsequential for two reasons. According to the F.I.R. both the appellants were armed with rifles whereas guns had allegedly been recovered from their possession during the investigation. Apart from that the report of the Forensic Science Laboratory regarding both such recovered guns is in the negative as none of these guns had matched with any crime-empty recovered from the spot. Thus, the alleged recoveries from the appellants had failed to provide corroboration to the ocular account and the learned trial Court had itself ruled such recoveries out of consideration.

13. The medical evidence had contradicted the ocular account qua the appellants in many ways. The appellants had allegedly used rifles for causing injuries to Muhammad Hussain deceased but the statement made by Dr. Khalid Mehmood (P.W.7) shows that the injuries sustained by the deceased had been caused by pellets and not bullets. The statements made by Zaka Ullah, FC (P. W.10) and Muhammad Yousaf (P.W.11) also confirm that only pellets had been recovered from the dead-body at the time of its post-mortem examination. It is also critically important to mention here that according to the prosecution's case both the appellants had caused independent injuries to the deceased from their respective rifles on different parts of the deceased's body but Dr. Khalid Mehmood (P.W.7) had categorically stated that a possibility could not be ruled out that all the injuries sustained by the deceased were a result of only one shot fired from a gun .12 bore. This shows that instead of providing support to the ocular account the medical evidence had gone a long way on rendering the same quite doubtful.

14. Another, important factor in this case is that according to the F.I.R. as well as the statements made by the eye-witnesses before the learned trial Court the appellants and their co-accused had fired only six shots during the entire occurrence whereas the statement made by Mehmood Mustafa, A.S.-I. (P.W.13), the Investigating Officer, shows that as many as thirty-one crime empties had been recovered from the place of occurrence soon after the incident. Out of these thirty-one crime-empties ten were of rifle .303 bore, ten were of rifle .44 bore and eleven were of gun .12 bore. This clearly indicates that the occurrence in this case had not taken place in the manner alleged by the prosecution before the learned trial Court.

15. The discussion made above leads me to an irresistible and unavoidable conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to any other criminal case. H.B.T./M-1179/L Appeal allowed.