2005 PLP 2972 (YLR)

SH. ABDUL RASHID, J.

Ghulam Murtaza son of Ghulam Habib Caste Awan resident of Daewal Police Station Katha Saghral, District Khushab and Javed Husnain Shah son of Ghulam Murtaza Shah Caste Syed resident of Shahpur City along with their two other acquitted co-accused Ahmad Hassan son of Muhammad Hassan Shah and Majid Ali Shah son of Nazir Hussain Shah both Syed by Caste and residents of Shahpur City were tried in case F.I.R. No.173, dated 30-7-1997 under sections 302, 324, 109/34, P.P.C. registered with Police Station Shahpur Saddar and vide judgment, dated 19-4-1999 passed by learned Sessions Judge, Sargodha, Ghulam Murtaz appellant was convicted under section 302(b)/34, P.P.C. and sentenced to death and was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased under section 544-A of the Cr.P.C. in default whereof to undergo imprisonment for 6 months, whereas Javed Husnain Shah accused appellant was also convicted under section 302(b), P.P.C. and sentenced to undergo imprisonment for life and was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. in default of payment of which to further undergo 6 months while the other two co-accused were acquitted of the charges.

2. Feeling aggrieved by their conviction and sentence Ghulam Murtaza appellant had filed Criminal Appeal No.405 of 1999 and Javed Husnain Shah appellant has filed Criminal Appeal No.370 of 1999 while Murder Reference No.204 of 1999 has been received for confirmation of death sentence awarded to Ghulam Murtaza appellant. Both the appeals and also Murder Reference a,e being disposed of jointly by this judgment.

3. Briefly stated the facts of the prosecution case as set up in the F.I.R. are that on 30-7-1997 Muhammad Mumtaz son of Muhammad Hayat complainant of this case along with his brother Muhammad Ijaz deceased, who both resided in Shahpur city, had gone to Shahpur Courts in connection with the preparation of bail papers relating to their brother Muhammad Sher and at about 1 PM were present near the Chamber of Sh. Qamaruddin Advocate when a Car bearing Registration No. 4444/LHT of sky blue colour came from the side of the Court of Assistant Commissioner which was being driven by Javed Husnain Shah appellant and he stopped the car near the complainant and that the deceased. In the front seat Ghulam Murtaza appellant armed with .222 rifle was present and both Javed Husnain and Ghulam Murtaza (appellants) alighted from the car. Javed Husnain Shah raised Lalkara that he had come to take revenge of the murder of his father and the complainant and the deceased would not go alive and exhorted Ghulam Murtaza appellant to fire, who then fired a shot from his rifle hitting Muhammad Ijaz on the side of his back who then fell down. Ghulam Murtaza appellant then fired a second shot at them but they luckily escaped and the fire-shot hit Ahmad Khan son of Fateh Khan Caste Awan who was standing nearby on his right leg who also fell down. The complainant did not out of fear venture to go near the injured on the alarm Maqbool Hussain and Muhammad Riaz P.Ws. who were present nearby reached the scene of occurrence and had witnessed the same. The appellant leaving the car at the scene of occurrence made good their escape. The complainant further alleged in the F.I.R. that Muhammad Ijaz was fired at by the appellant accused at the behest and exhortation of Ahmad Hassan Shah and Majid Ali Shah acquitted co-accused. The motive for the occurrence alleged in the F.I.R. was that about 718 years ago Muhammad Aslam brother of the complainant had killed Murtaza Shah father of Javed Husnain Shah appellant and to avenge the said murder both the appellants had committed the occurrence in which Muhammad Ijaz deceased had been killed and Ahmad Khan had been injured. The complainant along with Maqbool Hussain and Muhammad Riaz P.Ws. then removed Muhammad Ijaz and Ahmad Khan who were in injured condition from the Court premises to Civil Hospital, Shahpur. Muhammad Ijaz succumbed to the injuries when they reached the gate of hospital. Leaving the dead body of Muhammad Ijaz at the gate of the hospital in the custody of Maqbool Hussain and Muhammad Riaz P.Ws., the complainant went to Police Station Shahpur Saddar and narrated the occurrence to Muhammad Afzal S.A. S.H.O. who recorded F.I.R.. Exh.PG on the dictation of Muhammad Mumtaz complainant which was read over to him and he signed the same in token of its correctness. Thereafter Muhammad Afzal S.-I./S.H.O. proceeded to the Civil Hospital Shahpur and found the dead body of Muhammad Ijaz. He prepared its injury statement Exh. PK and inquest report Exh.PL. He prepared injury statement of Ahmad Khan P.W. Then he handed over the dead body to Muhammad Aslam Constable for its transmission to mortuary for post-mortem examination. Muhammad Afzal S.-I./S.H.O. then went to the place of occurrence, he collected blood-stained earth from there and made it into a sealed parcel vide memo. Exh.PA and prepared rough site-plan of the place of occurrence Exh.PM. He also took into possession Car No. 4444/LHT from the place. of occurrence vide memo. Exh.PJ.

4. On 30-7-1997 at 1-30 p.m. Dr. Muhammad Shabbir, Medical Officer Tehsil Headquarter, Shahpur examined Muhammad Ijaz son of Muhammad Hayat aged about 18 years Caste Gondal and found the following injuries on his person:- (1) There was a round fire-arm lacerated wound of entrance 1/2 C.M. in diameter on the posterior lateral aspect of lower most part of left side of chest. It was 25 c.m. below and lateral to left nipple and 25 c.m. lateral to frontal midline. There was blackening on the upper half of wound. Corresponding holes present on Bunyan and Kameez. (2) There was an oval shape lacerated fire-arm wound of exit of 2.2 c.m. x 1.4 c.m. on the front of middle of right side of abdomen. It was 10 c.m. just lateral to umbilicus. There was corresponding holes on the Kameez and Bunyan. There was omentum protruding out of the wound of exit. The condition of the patient was very serious. B/P was nil and the pulse was not palpable. He was gasping for respiration. The patient expired in the emergency room in spite of emergency recessitation at 1-40 p.m. As the patient had expired, the natures of the injuries was not given by him, however, the duration of the injuries was fresh and these had been caused by fire-arm. Exh.PC is the correct carbon copy of his medico-legal report which was prepared and signed by him.

5. On the same day the said Medical Officer also examined Ahmad Khan son of Fateh Khan caste Awan at 1-30 p.m. and found the following injury on his person:-- "There was fire-arm lacerated wound of entrance 1-112 c.m. in diameter on the back of right calf in the middle. There was a corresponding hole mark over shalwar." The injury was kept under observation and had been caused by fire-arm its probable duration was fresh. The injury was declared later on as Ghair Jaifah Badiah. Ex.PD is the correct carbon copy of his Medico-Legal report which is in the handwriting of the Medical Officer and signed by him.

6. On the same day at 2-30 p.m. Dr. Abdul Hameed, Medical Officer Tehsil Headquarter Hospital, Shahpur had conducted post-mortem examination on the dead body of Muhammad Ijaz son of Muhammad Hayat Caste Gondal which was produced before him by Muhammad Aslam Constable and he found the following injuries on the dead body:-- (1) A round lacerated fire-arm wound of entry 0.5 c.m. in circumference on the postero lateral aspect of the lower most part of the left side of chest. It is 24 c.m. below and lateral to left nipple. It is 25 c.m. lateral to the frontal midline. Blackening was present on upper half of wound. The collar of abrasion was present more on upper half of the bone. Corresponding holes were present on shirt and vest. (2) An oval lacerated fire-arm wound of exit 2.2 x 1.4 c.m. present on front of middle part of right side of abdomen. It is 10 c.m. just lateral to the umbilicus. Corresponding holes were present on vest and shirt. The greater omentum was protruding out through, the wound. THORAX Walls, ribs and cartilages normal. Pleurae was normal. Larynx and treachea was also normal, right lung, left lung, pericardium and heart, blood vessels were found normal. DISSECTION All its organs were found to be normal. Peritoneal cavity was found full of blood. Peritoneum and pancreas were found ruptured. Small intestines and large intestines were found ruptured at multiple sites. Mesentery and greater Omentum were ruptured at multiple sites. Liver and spleen were found normal. Left kidney was ruptured at its lower pole. Bladder and organ of generation internal and external were found normal. Abdominal aorta was found to be ruptured.

7. The cause of death in the opinion of the doctor was catastrophic intra abdominal haemorrhage leading to severe hypovolemia shock due to above said injury. The probable duration between injury and death was 15 to 30 minutes and the probable duration between death and post-mortem examination was about one hour. Exh.PE is the correct carbon copy of the post-mortem report whereas Exhs.PE/1 and PE/2 are the pictorial depictions of the injuries.

8. After the post-mortem examination the Medical Officer handed over the last worn clothes of the deceased which are Shalwar PI, Shirt P2, Vest P3, a pair of Chappal P4/1-2 which the said Constable produced before Muhammad Afzal S.-I./ S.H.O. who took into possession vide memo. Exh.PB Shirt P2 and vest P3 had holes corresponding to the injuries of entry and exit. The Investigating Officer recorded the statement of the P.Ws. under section 161, Cr.P.C. on 31-7-1997. The Investigating Officer recorded the statement of the P.Ws. under section 161 of Cr.P.C. on 31-7-1997. The Investigating Officer summoned Muhammad Saleem Draftsman and directed him to prepare site-plan of the place of occurrence who took rough notes at his instance and on pointation of the P.Ws. and prepared site-plan Exh.PA and its copy Exh.PA/1 of the place of occurrence.

9. On 4-8-1997 Muhammad Afzal S.-I. arrested Ghulam Murtaza accused near the Chamber of Qamaruddin, Advocate in the premises of Shahpur Courts. He was carrying rifle 222 with him at that time the S.-I. took into possession his rifle P1 alongwith 19 cartridges and 12 empties vide memo. Exh.PF. The S.-I. deposited the sealed parcels of this case with Moharrir Head Constable for safe custody. He completed the investigations and concluded that Javed Husnain, Ahmad Hassan and Majid Ali Shah were innocent and he challaned only Ghulam Murtaza accused.

10. Vide judgment, dated 10-2-1998 the learned Sessions Judge, Sargodha upon perusal of the F.I.R. and report under section 173, Cr.P.C. and other material on record summoned Javed Husnain Shah, Ahmad Hassan Shah and Majid Ali Shah accused to face trial.

11. The appellants along with their acquitted co-accused namely Ahmad Hassan and Majid Ali Shah were charged under sections 302, 324 and 109134, P.P.C. which was read over to them and they pleaded not guilty and claimed to be tried.

12. The prosecution produced Muhammad Saleem Draftsman P.W.1, Muhammad Saeed Moharrir Head Constable P.W.2, Muhammad Aslam Constable P.W.3, Dr. Muhammad Shabbir Medical Officer P.W.4, Dr. Abdul Hameed Medical Officer P.W.5, Muhammad Iqbal P.W.6, Muhammad Asif A.S.-I. P.W.7, Muhammad Mumtaz complainant P.W.8, Muhammad Riaz eye-witness P.W.9, Muhammad Ishaque P.W. 10 and Muhammad Afzal S.-I./S.H.O. (Investigating Officer) P. W. 11 in support of its.

13. The learned D.D.A. gave up Maqbool Hussain, Ghulam Shabbir Constable, Muhammad Yousaf and Mazhar Hussain Shah P.W., being unnecessary. He also gave up Ahmad Khan P.W. as having been won over by the accused. He tendered in evidence report of the Chemical Examiner PQ and report of Serologist Exh.PR and that of Forensic Science Laboratory Exh.PS and closed the prosecution case. The statement of the appellants and their acquitted co-accused was recorde4 under section 342, Cr.P.C. and all the incriminating evidence was put to them which they refuted. They pleaded that they were innocent and had been falsely roped in this case on account of suspicion and enmity. The appellants did not wish to appear as a witness on oath in disproof of the prosecution allegation. However, they produced Ghulam Hussain Moharrir Head Constable of Police Station Shahpur as D.W.1 and Muhammad Saleem Moharrir Head Constable of the same Police Station as D.W.2 who produced certified copies of the F.I.Rs. Exh.DC to Exh.DT registered under different offence against the deceased, complainant and the eye-witnesses.

14. Upon conclusion of the trial both the appellants had been convicted and sentenced as mentioned above. Feeling aggrieved they had filed these appeals.

15. It has been mainly argued by the learned counsel for the appellants that the complainant and the other eye-witnesses namely Muhammad Riaz and Maqbool Hussain had not seen the occurrence and that both Ijaz Ahmad, and Ahmad Khan were taken to the hospital by the police in injured condition and both the deceased and Ahmad Khan injured were medically examined and that Ijaz deceased died in the emergency room and that the version of the complainant and the eye-witnesses that they had taken both the injured to the hospital stands belied by the testimony of Muhammad Shabbir Medical Officer P.W.4 who had medically examined both Muhammad Ijaz and Ahmad Khan on 30-7-1997 at 1-30 p.m. It is further contended that after the occurrence the complainant and the P.Ws. were summoned and a false story had been concocted and the appellants along with their acquitted co-accused were nominated and false roles were assigned to them and that Javed Husnain one of the appellants along with their two acquitted co-accused namely Majid Ali Shah and Ahmad Hasan Shah were found to be innocent and were not even challaned in this case and that the complainant party had roped in innocent people merely on account of enmity. It is further contended that the motive as alleged, by the complainant and the P.Ws. is too remote and pertained to 718 years prior to the occurrence and no untoward incident had taken place between the complainant party and the accused in between the said period and that Ghulam Murtaza appellant had no motive whatsoever against the deceased and that he was not even known to the complainant party. It is further contended that the recovery evidence in this case is of no consequence.

16. Regarding motive the prosecution case is that about 718 years prior to the occurrence Ghulam Murtaza Shah father of Javed Husnain Shah accused was killed by Muhammad Aslam another brother of the complainant and to avenge the said murder the accused had planned and committed the murder of Muhammad Ijaz brother of the complainant. It is thus an admitted fact that the deceased had not killed father of Javed Husnain Shah appellant. No untoward incident or fight had taken place between the appellants' side and the complainant party during the said 7/8 years preceding the occurrence. Ijaz deceased must be a boy of about 9/10 years of age when father of Javed Husnain Shah appellant was murdered and he had no role whatsoever in his murder, therefore, the appellants had no direct motive to kill Muhammad Ijaz deceased on account of murder of Ghulam Murtaza Shah. If Javed Husnain appellant nurtured grudge against Ijaz deceased for the murder of his father by brother of the deceased then the same grudge was available against Mumtaz complainant as well but the accused did not effectively fire at him though it is stated by Mumtaz Hussain complainant that he was also fired at but he escaped and the fire-shot had hit Ahmad Khan injured P.W. but the fact remains that the fire shot was not repeated at the complainant and he went unscathed. Therefore, motive of Javed Husnain Shah appellant against Muhammad Ijaz deceased is too remote to be believed. However,,it is admitted by the complainant himself in his evidence that there was deep rooted enmity between Javed Husnain Shah appellant, acquitted co-accused and the complainant party. Thus the motive as alleged by the complainant side instead of being a reason for attack by the appellant on the deceased rather furnishes a basis for the implication of the appellants and their co-accused on account of enmity. The motive thus in this case appears to be not a compelling factor for the appellants to launch attack but has assumed the nature of a source for false implication of the appellants and acquitted co-accused.

17. Admittedly, Javed Husnain Shah along with their two acquitted co-accused namely Ahmad Hassan Shah and Majid Ali Shah against whom allegation of conspiracy had been made were found innocent during police investigation and were not challaned.

18. Muhammad Afzal S.-I./S.H.O. P.W.11 admitted in his cross examination that it was proved that Majid Ali Shah accused on the day of alleged abetment was not present at Shahpur City and instead was present in village Haveli Qureshian, Police Station Kot Moman. He had also recorded evidence that Ahmad Hassan Shah acquitted accused was a heart patient and an old man and he never came out to the Dara from his house. He investigated about their innocence from a large number of persons and found that they were innocent. He further stated that he had made investigations from many persons and the Advocates about the occurrence and concluded that Javed Husnain Shah appellant was not present at the spot. He further stated that large number of persons gave oath on the Holy Qur'an about the innocence of Javed Husnain Shah accused (appellant) and he also arranged confrontation meeting between the complainant party and the accused and came to the conclusion that Ahmad Hassan, Javed Husnain Shah and Majid Ali Shah were innocent. His investigation was checked and verified by S.D.P.O./D.S.P. who after examining large number of persons and hearing the parties also agreed with his investigations. Thus the findings of innocence of Javed Husnain Shah appellant during the investigations was based on sufficient material and was not a mere conjectural opinion. The complainant and Muhammad Riaz eye-witness have thus falsely implicated innocent persons in this case and as such their testimony is not worthy of credence.

19. Mumtaz Hussain complainant and Muhammad Riaz eye-witnesses had stated that they had removed Ijaz deceased and Ahmad Khan injured P.W. from the premises of Shahpur Courts to the Hospital and when they reached near gate of the hospital Ijaz deceased succumbed to the injuries and leaving the dead body in the custody of Riaz P.W.9 and Maqbool Hussain given up P.W., Mumtaz complainant went to the police station Shahpur Saddar and lodged the F.I.R. According to both the eye-witnesses produced in the Court Ijaz deceased died at the gate of hospital. However, the said version is totally belied by the evidence of Dr. Muhammad Shabbir P.W.4 who stated that on 30-7-1997 at 1-30 p.m. he had examined Muhammad Ijaz son of Muhammad Hayat while he was in injured condition and that he prepared his Medico-Legal Report, carbon copy whereof has been produced as Exh.PC which was in his handwriting and signed by him. He further stated that the condition of the injured at the time of examination was very serious. His BP was nil and pulse was not palpable. He was gasping for respiration and then the patient expired in the emergency room at 1-40 p.m. in spite of emergency resuscitation. He further stated in his cross-examination that Muhammad Ijaz and Ahmad Khan injured were brought to the hospital together by Muhammad Aslam Head Constable at 1-30 p.m. None of the relative or friend of the injured persons was with them and as they had been brought by the police, therefore, in Exh.PC he mentioned in the relevant column "police case". The evidence of this P.W.4 had not been challenged. He has been produced by the prosecution itself and Medico-Legal report of Ijaz deceased which is Exh.PC has been got exhibited by the D.D.A. himself. Thus it is the prosecution version itself that the deceased did not expire at gate of the hospital but had expired in emergency room after his Medico-Legal examination and that the deceased and injured Ahmad Khan were brought to the hospital by the police and not by the complainant and the eye-witnesses. Medical Officer P.W.4 is an independent witness and has no motive to fabricate or falsely allege about the Medico-Legal examination of the deceased vide Exh.PC. Thus it stands established through independent and reliable evidence that the deceased and Ahmad Khan injured were removed from the Court premises where the occurrence had been committed in injured condition to the hospital by the police and not by the, complainant or the other eye-witnesses namely Riaz and Maqbool Hussain. Thus the very presence of the complainant and the eye-witnesses at the scene of occurrence and their witnessing the occurrence stands belied by the Medical Officer and is rendered nugatory by the Medico-Legal examination report Exh.PC. The entire edifice of the prosecution case against the appellants thus stands demolished. Ahmad Khan P.W. was admittedly injured in the occurrence but he has not been produced by the prosecution and it has been admitted by Mumtaz complainant in his evidence that he had been given up because he was not willing io support the prosecution case. Thus P.W. who was injured in the occurrence and as such was a material prosecution witness has not supported the prosecution case which fact also redounds to the mendacity of the prosecution case set up by the two eye-witnesses in their evidence before the trial Court. After going through the record and evidence we are of the opinion that Mumtaz Hussain complainant and Ijaz Ahmad eye-witnesses were not present at the scene of occurrence and that they were summoned subsequently and the F.I.R. was lodged against the appellant and their acquitted co-accused on the basis of suspicion stemming from their enmity. Therefore, the trial Court has wrongly recorded the appellants' conviction and sentence and acquitted him of the charges. They are in jail and shall be released forthwith if not required in any other case.

20. As a result, the Murder Reference is answered in the negative.

21. Rifle .222 (P5) allegedly recovered from Ghulam Murtaza accused appellant along with its live bullets P5/1-19 shall stand confiscated to the State. The clothes of the deceased shall be returned to his legal heirs. N.H.Q./G-342/L Appeal accepted.