2008 PLP 1510 (YLR)

M. BILAL KHAN, J.

This Criminal Appeal No. 109 of 2000 is directed against the judgment dated 30-3-2000 passed by the learned Addl. Sessions Judge, Jhelum, whereby he convicted Muhammad Ashraf accused/ appellant under section 302(b) P.P.C. and sentenced him to death. He was also ordered to pay a sum of Rs.50,000 as compensation to be paid to the legal heirs of the deceased Khizar Hayat under section 544-A Cr.P.C. in default of payment of which he was to undergo further R.I. for 6 months. The learned trial Court acquitted co-accused Muhammad Tabraiz by extending to him benefit of doubt. The learned trial Court also sent Murder Reference No. 206 of 2000 for the confirmation of death sentence to this Court. Apart from this Muhammad Bashir complainant filed Criminal Revision No. 64 of 2000 for enhancement of the amount of compensation against Muhammad Ashraf accused/appellant. All these matters are disposed of through this judgment.

2. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. by Muhammad Bashir complainant are that he was an agriculturist. On 22-5-1997 at 12-00 Noon he and his brother Mirza Khan were collecting Bhoosa (hay) in the fields, after which they went to their house to take lunch. Their brother Khizar Hayat Khan deceased was ahead of them. When the deceased reached near the Dera of Muhammad Akram, Muhammad Ashraf accused armed with .12 bore gun, Amjad Farooq armed with, .12-bore gun and Muhammad Tabraiz armed with .222-rifle emerged at the scene. Muhammad Ashraf accused fired with his .12 bore gun which hit on the chest of Khizar Hayat. Amjad Farooq fired a shot hitting on the chest and shoulder of the deceased Khizar Hayat, who fell down. Tabraiz accused also fired which did not hit anybody. The occurrence was witnessed besides the complainant by Mirza Khan and Nazar Muhammad P.Ws. Khizar Hayat succumbed to the injuries. After the incident the accused fled from the spot. The motive behind this occurrence as narrated by the complainant was that a few days before the occurrence an acacia (keekar) tree fell on the common Banna of Muhammad Ashraf and Khizar Hayat. Ashraf accused sent his factotum/servant to fetch the same but Khizar Hayat deterred him due to which the accused felt annoyed which resulted into the murder of the deceased Khizar Hayat.

3. Regarding this incident F.I.R. No.34-97 dated 22-5-1997 was registered at Police Station Jalalpur Sharif Jhelum under section 302/34, P.P.C. After the occurrence Muhammad Younas Inspector P. W.10 (I.0) examined the dead-body of Khizar Hayat, prepared inquest report Exh.PG, collected blood-stained earth and sent the dead-body for postmortem examination through Muhammad Arif Constable P.W.3. Dr. Muhammad Zafar Iqbal P.W.8 Medical Officer P.D. Khan conducted 'postmortem examination on 23-5-1997 and found the following injuries. (1) A wound of entry with blackish margin on the left side of lower margin of chin, 2 c.m. from the centre. It was 2 1/4 c.m. x 1 c.m. going into deep. (2) A wound of entry with blackish margin on the centre of front of neck on the trachea and going into deep. It was 1/4 x 3/4 c.m. in size. (3) From the injury No. 2, 2 1/2 c.m. to the lower and right side a wound of entry with blackish margin. It was 3/4 x 3/4 c.m. in size and was going into deep. (4) A wound of entry with blackish margin on the front of right shoulder, 1 c.m. below the clavicle and 12 c.m. from the inner end of clavicle. It was 3/4 x 3/4 c.m. and going into deep. (5) 10 c.m. below injury No. 4 and 4 1/2 c.m. above the right nipple, a wound of entry 1/2 x 1/2 c.m. and going into deep. (6) A wound of entry with blackish margin 2 c.m. above the opigastrium, 12 c.m. from right nipple and 15 c.m. from left nipple and a little right from the central line. It was 1/2 c.m. and going into deep. (7) A wound of entry with blackish margin 6 c.m. above vertically from left nipple. (8) In between the injury No. 7 and left shoulder tip. There was a wound of entry with blackish margin. It was 3/4 x 3/4 c.m. and going into deep. (9) A wound of exit on the back of right chest at the lower end of right scapula. It was 3/4 x 3/4 c.m. (10) 14 c.m. to the neck, from injury No. 9 and 4 c.m. from the central line. There was a wound of exit at the route of neck. (11) There was a wound exit at the lower end of left scapula region. It was 1/2 c.m. x 1/2 c.m. (12) In between the left shoulder and left side of the neck 3 c.m. below the upper margin there was a wound of exit 1/2 c.m. x 1/2 c.m. on the back surface. In the opinion of doctor injury No.8 which caused hole in the heart and profused haemorrhage was the cause of death which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was immediate and between death and postmortem was 12-36 hours.

4. On 1-6-1997 the Investigating Officer arrested Muhammad Ashraf, Muhammad Farooq and Muhammad Tabraiz. Muhammad Ashraf on 10-6-1997 led to the recovery of .12 bore gun Exh.P.3 from the room adjacent to his Bethatk.

5. At the commencement of the trial the learned trial Court framed charge under section 302/34 P.P.C. on 5-1-2000 against the accused Muhammad Ashraf and Muhammad Tabraiz to which they pleaded not guilty and claimed trial.

6. During the trial the prosecution produced as many as 10 witnesses in support of its case against the accused. Muhammad Bashir complainant P.W.7 and Mirza Khan P.W.9 provided the eye-witness account in the case. Both the said P.Ws also deposed about the motive behind the occurrence. Zafar Iqbal P.W.5 and Mazhar Iqbal P. W.6 were the recovery, witnesses and they witnessed the recovery of .12 bore gun on the pointation of Muhammad Ashraf accused/appellant. The medical evidence was provided by Dr. Muhammad Zafar Iqbal P.W.8 who conducted postmortem examination on the dead-body of Khizar Hayat deceased. Muhammad Younas Inspector P.W. 10 (I.O.) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. Mazhar Mahmood and Muhammad Ashraf P.Ws. were given up having been won over by the accused party.

7. After the close of prosecution case the accused were examined under section 342, Cr.P.C. They pleaded not guilty and attributed the case to enmity. To a question as to why this case against him and why P.Ws. have deposed against him, Muhammad Ashraf accused answered as below: "The police has registered a false case against me and my two sons due to enmity and in connivance with the complainant party due to political pressure. The P.Ws are inter se related with the deceased." The accused Tabraiz also made more or less a similar statement. However, both the accused did not opt to make any statement on oath under section 340(2), Cr.P.C. and did not produce any witness in their defence.

8. At the conclusion of the trial, the learned Addl. Sessions Judge acquitted all other accused by extending to them the benefit of doubt except Muhammad Ashraf accused/ appellant, who was convicted and sentenced as mentioned in detail hereinabove. Hence this appeal, Murder Reference and Criminal Revision.

9. We have heard the learned counsel for the parties and have gone through the record with their assistance. It has been argued by the learned counsel for the appellant that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, as such the conviction and sentence recorded by the learned trial Court warranted setting aside by this Court as against that the learned State counsel has maintained that the prosecution has succeeded in proving the guilt of the appellant to the hilt, therefore, the conviction and sentence recorded by the learned trial Court did not warrant any interference by this Court.

10. After hearing the learned counsel for the parties and going through the record with their assistance it has straightaway been noticed by us that the eyewitnesses of the occurrence P.W.7 Bashir Ahmad and P.W.9 Mirza Khan are interested witnesses being real brothers of the deceased. Not only that but they are also inimical inasmuch as there is long standing litigation pending between the parties. P.W.7 Bashir admitted during the cross-examination that enmity between the complainant party and the accused was prevailing for the last 20/25 years. We are fully cognizant of the legal position that close relationship of the P.Ws. with the deceased and background of enmity between them cannot justify outright rejection of their testimony but at the same time in order to believe their testimony the same has to be consistent, coherent and confidence inspiring. We have noticed that there are material contradictions in the testimony of Muhammad Bashir P.W. and Mirza Khan P.W. Muhammad Bashir P.W. who is the complainant had stated in the F.I.R. that the occurrence was witnessed only by him and his brother Mirza Khan whereas in his deposition before the trial Court, he stated that the occurrence had been seen by all inhabitants of the village. Both the eyewitnesses have stated that deceased had received two gunshot injuries one caused by the appellant and other by Amjad Farooq which had landed on the chest and shoulder of the deceased. However, during investigation Amjid Farooq who is stated to have caused gunshot injury on the chest was never challaned and did not even face the trial.

11. The motive according to the prosecution was that a few days prior to the occurrence a keeker tree which was standing on the common Banna of Muhammad Ashraf appellant and Khizar Hayat deceased got uprooted due to storm and that Ashraf appellant had sent some persons to fetch the same but Khizar Hayat deceased did not allow him,to do so which was not liked by the appellant which became the motive for the occurrence. Both the P.Ws. 7 and 9 deposed about the motive part. During cross-examination it was admitted that none of them was present when the person sent by Muhammad Ashraf appellant had come to collect the tree. Neither the said person was produced before the 1.0 nor was the tree taken into possession by the police or shown to the draftsman who prepared the site-plan. In this view of the matter we have come to the conclusion that the prosecution has not been able to prove the motive part of its story.

12. Insofar the recovery of single barreled .12 bore gun from the appellant is concerned, no crime empty was recovered from the scene and the gun allegedly recovered was never sent to the firearm expert even to ascertain about its workability. As such the recovery of gun will be of no avail to the prosecution and cannot furnish corroboration to its case.

13. As far as the medical evidence is concerned we have noticed that there are serious inconsistencies between the medical evidence and ocular account as furnished by the eyewitnesses. According to the doctor he noted black margins around all the wounds of entry i.e. injuries Nos.1 to 8 other than injury No. 5 whereas according to the draftsman P.W.4 Muhammad Afzal Patwari the distance from which the deceased was fired at was 40 feet.

14. Blackening around wounds is found if a firearm like a shotgun is discharged from a distance not more than 3 feet as such in the instant case blackening was not possible around the injuries if version of the eyewitnesses as also the Draftsman was to be accepted. Dr. Zafar Iqbal P.W.8 also stated in his cross-examination that the injuries had been caused from a distance of 5/6 feet. It would be beneficial to refer to the case of Mir Muhammad v. The State 1999 SCMR 610 where the Hon'ble Supreme Court by referring to Medical Jurisprudence and Toxicology 21st Edition page 227 observed that blackening around a wound is found if a firearm like shotgun is discharged from a distance of not more than three feet. In this situation the medical evidence completely belies the prosecution story. Similarly Dr. Muhammad Zafar Iqbal P.W.8 who conducted postmortem examination on 23-5-1997 observed that rigor mortis had disappeared and according to him rigor mortis disappears between 24 to 36 hours after death as such the timing of the occurrence as alleged by the prosecution also becomes doubtful because the occurrence is stated to have taken place at 12-00 Noon on 22-5-1997 whereas postmortem examination was conducted in the morning of 23-5-1997. Even if it is presumed that the rigor mortis disappeared in 24 hours the occurrence should have taken place early in the morning on 22-5-1997. This circumstance also lends support to the plea of the appellant that the deceased was done to death somewhere early in the morning. It would also be relevant to state that according to the doctor the small intestines and their contents contained gases and fluid. Large intestines contained gases and faecal matter. Bladder was found full of urine. This also shows that the deceased had not evacuated when the occurrence had taken place. If the occurrence as claimed by the prosecution had taken place at 12-00 Noon, normally the picture regarding the small intestines and large intestines and the bladder should have been different.

15. We have also noticed that the P.Ws. have resolutely stuck to their version regarding number of fire shots and stated that two fire shots had been made at the deceased one by the appellant and the other by Amjid Nazeer whereas according to the I.O. only one shot had been fired. It has even otherwise been found by us not to be safe to sustain conviction of the present appellant when their evidence qua Amjid Nazeer co-accused had been dis believed.

16. It has also been noted that serious irregularities have been committed by the I.O. in the conduct of investigation. The recovery Memo. of bloodstained earth, site plan without scale were not written by the I.O. himself. The number of F.I.R. Exh. PG on the complaint Exh. PA and the injury statement Exh.PH were not mentioned.

17. After having examined the case from all angles we have come to the irresistible conclusion that the prosecution has not been able to prove its case against the appellant beyond reasonable shadow of doubt. The benefit of such doubt has to be resolved in favour of the appellant. The evidence relied upon by the prosecution has not been found by us to be worthy of safe reliance in a case involving a capital charge. Accordingly by extending the benefit 'of doubt to the appellant he is acquitted of the charge. He shall be released from jail forthwith if not required in any other case. Criminal Revision No.64 of 2000 The learned counsel for the petitioner did not turn up, however, we had asked the learned Law Officer to render assistance. We had also asked the learned State counsel to advance his arguments in the light of the averments made in the Revision Petition. We heard them at length. Since the main appeal has been accepted, therefore, we find no substance in the Revision Petition which is hereby dismissed. H.B.T./M-564/L Appeal accepted.