2003 P Cr (PLP)

2. Criminal Revision No.641 of 2001 filed by the State against Aurangzeb etc. and Criminal Revision No.930 of 2001 filed by Muhammad Akram against Aurangzeb etc. shall also be disposed of through this single judgment.

3. Occurrence in this case had taken place on 15-10-1997 at 5-00 p.m. within the jurisdiction of Police Station Saddar Gojra at a distance of six miles away while the matter was reported to the police by Muhammad Akram complainant through complaint Exh.P.C. at General Hospital, Gojra on the same day at 6-15 p.m. and the formal F.I.R. Exh.P.F./1 was recorded by Muhammad Rasheed M.H.C. on the same day at 6-30 p.m.

4. According to the F.I.R. Exh.P.F./1 the facts of the prosecution case are that on 15-10-1997 Muhammad Akram complainant alongwith his brother Muhammad Younis, Muhammad Usman son of Muhammad Younis his nephew and Muhammad Ashraf were coming back in the village from their Dera. His brother Muhammad Younis was ahead from them. When they arrived on the road in front of Dera of Ali Muhammad, it was about 5-00 p.m. suddenly, Aurangzeb armed with gun .12 bore, Hussain armed with pistol and Shaukat Ali armed with, gun .12 bore emerged from the sugarcane field. Hussain raised a Lalkara to teach them a lesson for bringing the suit against them. Shaukat Ali fired straight with gun on his brother Muhammad Younis which hit on his left thigh. Aurangzeb fired with gun which hit on his left buttock of his brother who fell down. Hussain continued aerial firing and the accused raised the Lalkara that if anybody come near them he would face the, same consequence and fled away while firing in the air and they could not intervene out of fear of their lives. They took Muhammad Younis in serious injured condition to General Hospital but he succumbed to the injuries in the way.

5. Motive behind the present occurrence was that their land was adjacent to the land of Ali Muhammad etc. accused and a suit for demarcation of land was pending in the Civil Court against the accused. On this grudge, all the three accused at the instance of Ali Muhammad Ali Ahmad sons of Allah Bakhsh, Waris Ali, Liaqat Ali sons of Ali Ahmad murdered his brother.

6. After registration of the formal F.I.R., investigation of the case was taken over by Zafar Iqbal S.H.O. P.W.9, who went to the spot, prepared injury statement Exh.P.B. and inquest report Exh.P.C., took into possession blood-stained earth from the spot vide memo. Exh.P.G. On 13-11-1997, he arrested Aurangzeb and Hussain accused and on the same day, Aurangzeb accused while in custody led to the recovery of gun P.4 alongwith licence P.5 which were taken into possession vide memo. Exh.P.J. On the same day, Hussain accused while in custody led to the recovery of Sota P.6 which was taken into possession vide memo. Exh.P.K., thereafter, the investigation was entrusted to Haji Mukhtar Ahmad P.W.8, who found guilty, Aurangzeb, Shaukat Ali and Hussain accused and challaned them to face the trial.

7. At the trial, prosecution in order to prove its case produced nine witnesses in all, thereafter, learned D.A. tendered in evidence report of Chemical Examiner Exh.P.L., report of Serologist Exh.P.M. and closed the prosecution case, then the statement of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence.

8. Learned counsel for the appellant in support of this appeal, submits that it was an unwitnessed occurrence, that there is a conflict between ocular account and medical evidence, that no recovery was effected from Shaukat Ali appellant, that as far as recovery from Aurangzeb appellant is concerned, it has got no value because no crime empty was recovered from the spot, that both the eye-witnesses are brother and son of the deceased, that no independent witness has been produced by the prosecution, that motive was not proved by the prosecution. Elaborating his arguments, learned counsel submits that according to the F.I.R. civil suits were pending between the parties and that civil suit was filed by the complainant against the accused party but in fact no civil suit was ever filed by the complainant party and in fact it was the appellant's party who had filed civil suit against the complainant party that improvements were made by the eye-witnesses before the trial Court in order to make the case in line with the post-mortem report, that learned trial Court had not awarded death sentence as the motive was not proved, he lastly submits that Shaukat Ali, appellant was also found innocent by three investigating agencies and prosecution failed to prove its case against the appellant beyond any shadow of doubt.

9. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R, in which both the appellants alongwith one other accused were named by the complainant, that ocular account is corroborated by medical evidence, that recovery was effected from Aurangzeb appellant, that there was no previous, background of enmity between the parties so there was no question of false implication in this , case and that prosecution had proved its case against the appellants beyond any shadow of doubt. They both support the judgment of the learned trial Court.

10. I have heard learned counsel for the parties at a great length and have also gone through the record very minutely with their able assistance. F.I.R., was lodged by Muhammad Akram complainant, real brother of Younis deceased at General Hospital, Gojra at 6-15 p.m. According to the F.I.R. Aurangzeb was armed with .12 bore gun, while Shaukat Ali was also armed with .12 bore gun and it was one Hussain (acquitted accused) who raised Lalkara stating that complainant be taught a lesson for filing a civil suit. Shaukat Ali appellant fired a shot with his gun which hit the deceased on his left thigh, thereafter, Aurangzeb appellant fired a shot with his gun which hit on the left buttock of the deceased. I have gone through the post-mortem report and diagrams of the injuries which is Exh.P.F./1. It is correct that injuries on the persons of the deceased is on right buttock and on the left thigh but according to Exh.P.F./1 the word has been altered into while according to the F.I.R., the injury attributed to Aurangzeb is on the left buttock. Alteration has also been done in this case in the word. In the inquest report, this injury on the buttock of the deceased is attributed to Aurangzeb, I have also gone through Column No. 10 of the inquest report where injury has been mentioned at right buttock. In the brief inquest report, before the word has been made into which I have encircled the same and learned State Counsel concede to this fact. The signatures of the doctor are on the last line of all The pages of the inquest report. In my considered opinion the inquest report was recorded later on after getting the post-mortem report, so all this alterations were done by the Investigating Officer in order to make in line the statements of the witnesses with the post-mortem report. Two persons had fired at the spot but no crime-empty was recovered. No recovery was effected from Shaukat appellant and he was also found innocent by three/four Investigating Agencies. Though the opinion of the police is not binding on the Court but due to peculiar circumstances of the case it has become relevant for the acquittal of the accused. Moreover; no recovery was effected from Shaukat appellant and to my mind his case is doubtful. I may also mention here that Muhammad Akram P.W.6 while appearing before the trial Court had stated in his examination-in-chief that Aurangzeb appellant fired a shot with his gun which hit Younis deceased on his right buttock but in cross-examination the, same portion was confronted as under:-- "I had mentioned in my statement that Aurangzeb fired which hit on the right buttock of the deceased (confronted with Exh.P.F. where left buttock is mentioned)." At this stage, it was stated by learned D.D.A. that in the complaint Exh.P.F. word right is mentioned. It is correct that I had stated in my previous statement recorded by Special Court A.T.A., Faisalabad that "it is correct that I had stated before the police that the of Aurangzeb accused hit the left buttock of the deceased" confronted with his previous statement where it is so recorded). In the instant case complainant party had been changing his version regarding the place of injury before the two Courts below i.e. Special Court A.T.A. 97 where the; case earlier heard and then on remand the complainant party again changed the version which has been mentioned above. Muhammad Usman son of the deceased in his cross-examination also stated as under:- I had stated in my police statement that fire of Aurangzeb hit .at right buttock of Muhammad Younas and had not stated that fire of Aurangzeb hit on the left buttock of Muhammad Younas (confronted with Exh.D.A. where left buttock is recorded)." This dishonest improvement was made by Muhammad Usman P.W.7 real son of the deceased in order to make in line his statement with the post-mortem report. Moreover, the Dr. Muhammad Aslam P.W.1, who had conducted the post-mortem examination on the dead body of the deceased on 16-10-1997 at 10-00 a.m. had given the duration between death and post-mortem 12 to 16 hours. According to the prosecution case, occurrence had taken place on 15-10-1997 at 5-00 p.m. post-mortem took place on the next day at 10-00 a.m. If I take the duration of 12 hours between death and post-mortem, the possibility of the occurrence being unwitnessed cannot be ruled out. Though prosecution claims that occurrence had taken place in broad-daylight and prosecution also claims that these eye-witnesses had witnessed the occurrence but it is not correct. The complainant and Usman P.Ws. 6 and 7 had given specific place of seat of injuries of the deceased in F.I.R. and in their statements recorded under section 161, Cr.P.C. respectively, which are contradicted with the medical evidence. This is the reason that even the Investigating Officer being dishonest has been altering the word either or word. Moreover, prosecution failed to prove the motive in this case. No civil suit was ever filed by the complainant party and this fact has been admitted by the first informant before the trial Court. If there was no motive to kill the deceased, then there was no reason with the accused to commit the murder of the deceased. To my mind the eye-witnesses were not present at the spot; though there was no previous background of enmity between the parties but the presence of the eye-witnesses is totally doubtful, the conviction cannot be awarded or maintained on the capital charge on this short ground. Moreover no other P.W. from the said village was produced by the prosecution and in my considered opinion the reasons for false implication of the appellant was that in fact it was the appellant party who had filed the civil suit against the complainant party and in order to blackmail and pressurize them and to teach them a lesson this false case was registered against the appellant. After having analysed the case from all the angle, I am of the opinion that it is a case in which there are so many doubts and benefit of the same always goes in favour of the accused not as a matter of grace but as a matter of right, so while granting the same benefit. I accept this appeal set aside the conviction and sentence recorded against the appellants by the learned trial Court. They are on bail and they shall be discharged from the bail Bonds. H.B.T./A-825/L Appeal accepted.