2000 PLP 617 (YLR)

This judgment will dispose of Criminal Appeal No.387 of 1988 filed by Liaqat Ali, appellant who was convicted under section 302, P.P.C., for the murder of Abdul Ghafoor and Najma Bibi, his real sister and sentenced to undergo life‑imprisonment on two counts, by the learned Additional Sessions Judge, Lahore through his judgment, dated 19‑11‑1987. The appellant was also ordered to pay Rs. 10,000 as fine and in default of payment of fine, to undergo R.I. for 2 years. The fine if realized, 3/4th of the same was ordered to be paid to the legal heirs of deceased Abdul Ghafoor. Sentences were ordered to run concurrently.

2. The occurrence had taken place on 14‑5‑1985 at 4‑30 p.m. near house of the appellant in village Bhattay, Police Station Manawan, District, Lahore. The complaint was lodged by Muhammad Ashiq, real brother of Abdul Ghafoor, deceased at 5‑30 p.m. at Jalo Mor, which is Exh.P.A. Formal F.I.R., 'was recorded on the same day at Police Station at 5‑45 p.m. After recording F.I.R, Rashid Ahmad, S.I. (P.W.13) reached at the spot. He prepared injury statements of both the deceased and also the inquest reports. Thereafter, he collected 5 empties from the spot although the same were not produced before the Trial Court but later on those were produced. The same were taken into possession vide memo. Exh.P.H. blood -stained earth from near the place of murder of both the deceased was taken into possession vide memos. Exh.P.F. and Exh.P.G. Appellant led to the recovery of .12 bore gun P.6 and live cartridges P.7 and P.8 were also recovered at his instance. All these articles were taken into possession vide memo. Exh.P.B.

3. Prosecution in order to prove its case, produced 16 witnesses in all. Two eye witnesses, namely, Muhammad Ashiq (P.W.7) and Maqsood (P.W.8) are real brothers of Abdul Ghafoor deceased. Report of the chemical Examiner regarding stained earth Exh.P.R. and that of Serologist is Exh.P.S. Report of the I‑ire Arm Exh.P.T.

4. Learned counsel for the appellant has read before me the prosecution evidence, statement of the accused and submits that both the eye‑witnesses were not resident of the place of occurrence, their residence is at a distance of 1‑1/2 kilometeres from the place of occurrence, the natural witnesses who are resident of place of occurrence were neither cited nor produced by the prosecution, both the eye‑witnesses are real brothers of the deceased Abdul Ghafoor, no independent witness had been produced, there is conflict between ocular account and medical evidence and that the recovery of gun has been planted upon the appellant. Further submits that two motives were furnished by the complainant in the F.I.R., and had he been present at the spot, he must have mentioned nature of the fire‑arm in the F.I.R., although the occurrence was stated to have taken place at 4‑30 p.m. in the month of May, 1987 at that time even Asar prayer do not take place, there was no necessity of killing Mst. Najma, real sister of the appellant, prosecution has not approached the Court with clean hands and the prosecution has failed to prove its case against appellant.

5. On the other hand, learned counsel for the State supports the judgment of the learned trial Court and submits that it was a broad daylight murder, appellant is named in the F.I.R., specific role is attributed to him and that already a lenient view had been taken against the appellant, by the learned trial Court.

6. I have heard learned counsel for the parties and have also gone through the evidence with their assistance. In the instant case, both the eye‑witnesses produced by the prosecution are real brothers of the deceased Abdul Ghafoor. They are not resident of place of occurrence. Nature of fire‑arm allegedly used by the appellant is not mentioned in the F.I.R. No explanation or reason whatsoever has been given either by the Investigating Officer or by the eye witnesses before the trial Court why the appellant had killed his sister. If one goes through the statements of Dr. Muhammad Farooq Akmal (P.W.12) and Dr. Muhammad Saeed Akhtar (P.W.14) who conducted post- mortem examination on the dead bodies of both the deceased, clear conflict between ocular account and medical evidence will be found therein because according to F.I.R., only three shots were fired by the appellant at the time of occurrence but five crime empties were taken into possession and similarly according to the eye‑witnesses the appellant fired only one shot on the person of Najma Bibi but there are multiple fire‑arm injuries on her person which falsifies presence of the eye‑witnesses at the spot. The ocular account furnished by two eye‑witnesses is not worth inspiring. The appellant had also not taken any plea either before the trial Court during the cross‑examination of P.W.5 or in the statement under section 342, Cr.P.C. Both the parties have approached the Court with unclean hands and every one has suppressed his own role. From perusal of the F.I.R., and that‑of the prosecution story, it seems that the appellant had seen both the deceased in objectionable manner and under grave and sudden provocation, committed the murder of both the deceased and even did not spare his sister Najma. The occurrence took place in May, 1985 and the appellant was convicted on 19‑11‑1987. He has already suffered a' sentence of 6 years, 4 months and 15 days. Case of the appellants is covered by one of the exception of section 300, P.P.C., as it, was, on the day of occurrence, so his conviction from section 302, P.P.C., is altered to one under section 304, Part I, P.P.C., and the sentence which the appellant has already undergone is sufficient to meet the ends of justice. The sentence of fine is also set aside. Appellant is on bail. He shall stand‑discharged from his bail bonds. Appeal stands disposed of with above modifications in the sentence and conviction. N.H.Q./L‑49/L Order accordingly.