1988 PLP 942 (MLD)

This is an appeal by Bashir Ahmad 24 s/o Karam Elahi, Muhammad Arshad 18 and Muhammad Bashir 24 s/o Ahmad Din against the judgment by learned Additional Sessions Judge, Gujrat dated 19‑3‑1987 by which they were sentenced to imprisonment for life and fine of Rs. 5,000 or in default one year R.I. each under section 302/149. P.P.C. They were ordered to pay Rs. 5,000 each as compensation to the heirs of deceased and in default to suffer six months, R.I. They were also sentenced to 5 yeas, R.I. plus fine of Rs. 2,000 or in default six months, R.I. each under section 307/149, P.P.C. and one year R.I. each under section 148, P.P.C. The sentences of imprisonments were ordered to run concurrently. Muhammad Sharif accused died during the trial. Inayat, Munir, War, Sarwar and Riaz co‑accused of the appellants were declared absconders. They have not surrendered so far. It was stated by learned counsel for the appellants that Inayat and Munir, two absconding accused have since been murdered.

2. The occurrence took place at I1 p.m. (a little before the mid‑night) on 30‑6‑1983 on the roof of the house of Ahmad Hassan in village Hirya Wala, about 3 miles from the Police Station Saddar, Gujrat. The F I R Exh. P D was recorded at 2 a.m. a little after the mid‑night) on 1‑7‑1983 at police station by S.I. Muhammad Ashraf P.W.20 at the instance of Zulfiqar Ahmad P.W.9. It was stated by Zulfiqar Ahmad P.W.9 that on 30‑6‑1983, he, his uncles Ahmad Hassan, Muhammad Akbar and Mst. Nazir Begum were t. while sitting on the roof of the house of Ahmad Hassan. Mst. Asia daughter of Muhammad Akbar aged about 6/7 years was sleeping on a nearby cot. At about 11 p.m. Inayat, a proclaimed offender, Bashir, War, Sarwar, Munir sons of Karam Elahr armed with rifles, Arshad, Bashir s/o Ahman, Sharif and Riaz armed with guns started shouting lalkaras from the roof of the adjoining louse of Inayat accused. They opened firing at them. It was stated by Zulfiqar Ahmad P.W.9 that he took shelter in the western corner of the roof and started firing in return with his licensed 7. mm rifle. Mst. Asia who was sleeping was injured during the firing. She died as a result of injuries on her person. Muhammad Akbar and Mst. Naziran Begum were also injured. The accused left the spot. They. were seen going away by Ghulam Rasool P.W. Zulfiqar Ahmad P.W stated that his cousin Tariq Mahmood was nurdered by Inayat proclaimed offender and others. The said murder was reported to Police by Muhammad Akbar P.W. The accused fired at them in order to murder the complainant and witnesses. Zulfiqar Ahmad P.W, leaving Muhammad Akbar and Nazir Begum in Gujrat hospital for treatment and examination, went to Police Station Saddar, Guarat and reported the matter.

3. The dead body of Mst. Asia was sent for post‑mortem examination which was conducted by P.W.10 Dr. Muhammad Aslam on 1‑7‑1983 at 10.30 a.m. On external examination the medical officer found 9 firearm injuries of various dimensions on different parts of the dead body. Injury No.2 was "a firearm wound of entry with inverted margins 2.5 cm x 2 cm on front of right hypochontrium about 6 cm from mid line." On dissection of the dead body a bullet was found lying under injury No.1 on front of right thigh. Injuries Nos. 3, 4, 8 and 9 were . superficial. Injury No.6 was entry and injury No.7 was its exit wound. Injury No.2 . had injured the abdomen and had extensively damaged the liver which was torn and shattered in small pieces. The blood vessels were also injured. The stomach was torn through and through. The abdominal cavity was full of blood mixed with semi‑digested food. The bullet under injury No.2 had passed out making a wound of exit under injury No.5. The death was due to shock and haemorrhage caused by injury No.2 alongwith other injuries which were sufficient to cause death in ordinary course of nature. The death occurred soon after receipt of injuries and post‑mortem was conducted in about 10 to 16 hours of death. P.W.11 Dr. Mrs. Shamim Rashid on 1‑7‑1983 at 7.30 a.m. medically examined Mst. Nazir Begum P.W. and noted 6 firearms injuries of various dimension on different parts of her body. All injuries were fresh and kept under observation. P.W.14 Dr. Ghulam Mujtaba on 5‑6‑1983 at 1 a.m. (after mid‑night) examined Muhammad Akbar P.W and noted 6 fresh firearm injuries of various dimensions on different parts of his body.

4. S.I. Muhammad Ashraf P.W.20 on 1‑7‑1983 during inspection of the place of occurrence collected blood‑stained earth vide memo Exh.PN. He also took irz possession from the spot .12 bore empties P5/1‑5 and four .303 bore crime empties P6/1‑4 vide memo Exh.PO in presence of Muhammad Akram and Ghulam Rasool both not examined. All the accused absconded after the occurrence. S.I. Muhammad Ashraf made application Exh.PG to secure warrants of arrest of the accused. They were not available. The illaqa Magistrate therefore, issued proclamations Exh.PG/1 to Exh. PG/O9 for arrest of the accused. Muhammad Sharif (since dead)accused was arrested on 31‑3‑1983. Bashir Ahmad s/o Karam Elahi was arrested on 18‑11‑1983. Muhammad Arshad was arrested on 11‑12‑1983 and Muhammad Bashir s/o Ahmad Din was arrested on 31‑3‑1984. Muhammad Arshad accused while in police custody on 23‑12‑1983 led to the recovery of unlicensed carbine P4 vide memo Exh.PC attested by A S I Muhammad Anwar and Muhammad Nazir, not examined. Muhammad Bashir s/o Ahmad Din accused while in police custody on 1‑5‑19!34 led to the recovery of un licensed gun P5 alongwith two live cartridges vide memo Exh.PH attested by A S I Ghulam Haider P.W.12 and F C Munir Hussain P.W.18. The accused were challaned after completion of investigation. It appears OW the crime weapons recovered from the accused and crime empties recovered from the place of occurrence were not sent to Forensic Science Laboratory for examination.

5. In support of its case prosecution examined 20 witnesses in all. P.W.1, Muhammad Akbar, P.W.2 Mst. Nazir Begum and P.W.9 Zulfiqar Ahmad were examined as eye‑witnesses. Ahmad Hassan a witness named in the F I R was given up. The medical evidence was furnished by P.W.10 Dr. Muhammad Aslam, P.W.11 Dr. Mrs. Shamim Rashid and P.W.14 Dr.Ghulam Mujtaba as given in detail above. The incriminating recoveries from the place of occurrence were witnessed by S I Muhammad Ashraf P.W.20. Recoveries of crime weapons from the accused were witnessed by A S I Muhammad Anwar P.W.8 Khalid Javed P.W.17, A S I Ghulam Haider P.W.13 and F C Muhammad Hussain P.W.18. The case was investigated by S I Muhammad Ashraf P.W.20. The evidence of rest of the witnesses was of formal nature. The accused when examined after close of prosecution evidence denied :he charge and pleaded innocence. They did not produce any evidence in defence excepting a few documents which except copy of complaint Exh.PD, were only marked and not admitted in evidence. The learned trial Judge placed reliance on the evidence of eye‑witnesses and convicted the appellants as stated above.

6. I have carefully gone through the evidence on record. Muhammad Akbar P.W.1 is husband of Mst.Nazir Begum P.W.2 and father of Mst. Asia deceased. It is admitted that Zulfiqar Ahmad P.W.9 is nephew of Muhammad Akbar P.W.1 and cousin of Khalid Javed P.W.17. It is, therefore, proved that all witnesses are related inter se and also to the deceased. It is in evidence that Inayat absconder etc. accused had murdered Tariq Mahmood a cousin of Zulfiqar Ahmad regarding which a case was pending when this Occurrence took place. The parties were therefore, inimical to each other. It was admitted by P.W.9 Zulfiqar Ahmad that about 4/5 years earlier he and others were prosecuted in a case under section 307/34 P P C on the complaint of Ijaz Rasool. Secondly that a case under section 382 P P C was registered against him at Police Station Saddar, Gujrat. Thirdly that a case under section 506 P P C was still pending against him in which a brother of Ijaz Rasool was complainant.. Fourthly one Bhindara was murdered in 1974 for which he and 5 others were named as culprits, and fifthly that a case under section 364 P P C was registered against him for the abduction of Jogi Muhammad Iqbal of Shadi Wal. These admissions indicate that complainant had many other enemies in the area. The witnesses being closely inter‑related could be relied upon only if corroborated by some other independent evidence which is not available in the instant case. The recoveries of crime weapons at the instance of the accused and recoveries of crime empties from the place of occurrence are of no consequence because there is no evidence that crime weapons were used by the accused at the time of occurrence. The occurrence took place during dark hours of night. There was no light available at that time. It was stated by Zulfiqar Ahmad P.W.9 that the intervening distance between them and the accused was 12 feet. In my view even if there was moonlight at the time of occurrence, it was not possible for the witnesses to identify the accused from a distance of 12 feet. According to P.W.1 Muhammad Akbar and Mst. Nazir Begum P.W.2 this distance was 3 Karms i.e. 17 1/2 feet. There is another aspect of the case. P.W.11 Dr. Shamim Rashid medically examine Mst. Nazir Begum at 7‑30 a.m. on 1‑7‑1983. She gave duration of her injuries as fresh. In cross‑examination it was stated by medical officer that fresh may mean within a duration of one hour. According to this, Mst. Nazir Begum received injuries at about 5 or 6 a.m. on 1‑7‑1983 and not at 11 p.m. on 30‑6‑1983. According to these witnesses the accused fired at them from a distance of about 3 karams but there was blackening on the wounds of Mst. Nazii Begum which according to the medical officer would mean that she was fired all from within 2/3 feet. This evidence therefore, is in conflict with the ocular account furnished by eye‑witnesses. Although Mst. Nazir Begum and Muhammad Akbar P.Ws. were present at one place at the time of occurrence but no blackening was found on the injuries of Muhammad Akbar which according to the medical officer would mean that he got injuries from a distance of more than 6 feet. It therefore, appears that the occurrence took place in a manner different from the one stated by the eye‑witnesses. So far as the motive is concerned, it was stated by Zulfiqar Ahmad P.W.9 that his cousin Tariq Mahmood was murdered by Inayat absconder for which they were being prosecuted at the time of, occurrence. The motive if and was not for the accused to launch a second attack on the complainant party. The motive was for the complainant party to involve the accused in this case.

7. In view of the above discussion, I am of the view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. This appeal is accordingly accepted. Bashir Ahmad s/o Karam Elahi, Muhammad Arshad and Muhammad Bashir s/o Ahmad appellants are acquitted from all the charges. They shall be released from prison forthwith if not required in any other case. S.G.D./B‑66/L. Appeal allowed.