2001 PLP 552 (YLR)

I had mentioned in the F.I.R. that the exchange of abuses regarding damage of crop took place between Baqir P.W. and the accused. Baqir P.W. was not injured during the present occurrence. It is incorrect that. I made a statement before Ahmad Khan, S.-I. on 1-9-1995 that motive incident took place one month before the occurrence. Confronted with Exh.D.D where it is so recorded. It is correct that the land of the father of Azhar Hayat accused as situated at a distance of about 2 squares from the land of Hassan Mansoor accused. It is incorrect that no crop was damaged and on this score there was no altercation or exchange of abuses. It is incorrect that motive part has been fabricated. I had not mentioned in the F.I.R. that we were going towards the Dera of Sarwar Khatoon our sister which was across the river. It is correct that Baqir, Bahadar P.Ws., Shahadat, Akhtar remained in judicial lock-up for a period of 8/9 months on account of cross-case of this occurrence. I cannot say whether Hassan Manzoor had received grievous injuries like Jaifah and Hashmiah. I have no knowledge that Hassan Mansoor accused remained in a hospital for one month and 9 days. Baqir P.W. fired from a gun which belonged to Shahadat accused of the cross-case. Muhammad Baqir, Bahadar, Shahadat and Ghulam Akhtar have been challaned for possessing unlicensed guns in the cross-case of this occurrence. I have no knowledge whether they have confessed and have been sentenced to fine in the respective cases of possession of unlicensed arms. It is incorrect to suggest that Azhar Hayat accused always opposed Khuda Bakhsh and Ghulam Muhammad in Elections and he has been implicated on this reason. It is incorrect to suggest that Azhar Hayat did not fire either on the deceased or Bahadar P.W. .It is incorrect to suggest that Bahadar Khan and the deceased attacked Azhar Hayat because of the insult of shaving of moustaches and head mentioned above. Bahadur Khan (P. W.9) deposed:

"Haqnawaz deceased was my cousin. I alongwith Sarfraz P. W. Haqnawaz deceased and Baqir my brother were going to across the river on 5-8-1995 at 6-00 p.m. and we reached near the old Dara of Malik Khuda Bakhsh Tiwana i.e. near the bank of river the two accused present in the Court namely Muhammad Mansoor; and Azhar Hayat armed with a gun each came out from the Kikar bushes, Muhammad Azhar accused threw a challenge and both the accused simultaneously fired at Haqnawaz deceased hitting him in his chest. Haqnawaz fell down and Muhammad Azhar accused fired again hitting me on my right chin. Muhammad Baqir P.W. was armed with a gun who fired in the air in his defence. Muhammad Azhar, and Muhammad Mansoor accused then ran away while firing in the air. We went near Haqnawaz and found lying dead. This occurrence was witnessed by Muhammad Sarfraz and Muhammad Baqir P. W. beside me. I was medically examined. xxxxxx Haqnawaz deceased used to cultivate land in Jauhar Abad which may be at a distance of 19 Kilometres from the spot. We were going at our Dera across the river. There is a ferry at the river. The river water is at a distance of 2-1/2 squares from the graveyard. It is incorrect to suggest that the graveyard abuts the ferry at the river. There is no soling on the road from the Abadi of the village to the river. It is incorrect to suggest that there is a soling on the road up to the ferry near the graveyard. Volunteered there is no soling on the road towards the river from the village anywhere. It is incorrect that a month before the present occurrence. It is incorrect to suggest that during the days of occurrence nothing was left at the Dera cross the river and people had shifted to the rivers. It is incorrect to suggest that there was no occasion for anybody to go across the river. It is incorrect to suggest that the only path leading to the ferry lies by the side of the graveyard. I appeared before Ahmed Khan, S. I. and made a statement on 5-9-1995: I did not state before the said S. I. that during the course of this occurrence I was armed with a gun and had fired at that time with the said gun in my self-defence. Confronted with his statement Exh. DE so recorded. It is incorrect to suggest that I produced the gun before him stating that I had brought the gun used in the occurrence. Again confronted with the above statement where it is stated that he had brought the gun used by him during the occurrence. I have not a licence for a gun. It is incorrect that on the production of the above gun I was challaned under sections 13/20/65. It is incorrect to suggest that on my trial under sections 13/20/65 for the said gun I was convicted under section 13/20/65. I do not know if Hassan Mansoor accused was injured during the present occurrence. I also do not know if he remained admitted in the hospital for about 1-1/2 months. Hassan Mansoor did not receive any injury during the present occurrence. It is incorrect to suggest that Baqar, Shahadat and Akhtar attacked Azhar Hayat accused for the insult given by him to Baqir for shaving his moustaches and in that occurrence Hassan Mansoor accused was injured at our hands. It is incorrect to suggest that the deceased had been invited by us from Jauhar Abad to attack Azhar Hayat accused. It is incorrect to suggest that Khuda Bakhsh and Ghulam Muhammad of our village had prompted us to kill Hassan Mansoor because of their land enmity with Hassan Mansoor. It is incorrect that Khuda Bakhsh and Ghulam Muhammad are our landlords. It is incorrect to suggest that they have been prosecuting the case against Hassan Mansoor. It is incorrect to suggest that Hassan Marisoor accused was neither armed with a gun nor did he fire with the same during the occurrence. xxxxx It is incorrect to suggest that I did not get my injuries X-Rays in spite of the medical advised and fled away from the hospital. It is incorrect - that I fabricated my injuries. It is incorrect to suggest that Azhar Hayat accused is opposed to Malik Khuda Bakhsh Tiwana and insults him- in every election. It is incorrect to suggest that I have implicated Azhar Hayat accused at the instance of Malik Khuda Bakhsh and Ghulam Muhammad, his brother. It is incorrect that I made a false statement. It is incorrect to suggest that we were the aggressor and false case has been put up against Azhar Hayat accused. It is incorrect that he fired at the deceased or on myself." The Medical Officer Dr. Mahmood Ahmad Zubairi (P.W.4) deposed that on 5-8-1995 he medically examined Bahudar Khan son of Sher Muhammad, resident of Hamoka, District Khushab, who was brought by the police for examination and he found the following injuries on his person:-- (1) A fire-arm entry wound on the middle of right leg medially. Its size was 1/2 c.m. x c.m.

2. A fire-arm exit wound on the middle of right leg laterally. Its size was x c.m. The Medical Officer noted that the corresponding hole for entry wound was present and not for exit in the Shalwar. Injury Nos. 1 and 2 were kept under-observation for X-rays. All the injuries were caused by fire arm within a duration of 8 hours. He deposed P.B was the correct carbon copy of which was in his handwriting and him. On 6-8-1995 at 7-00 a.m. he conducted post-mortem examination on the dead body of Haqnawaz son of Ahmad Khan, caste Faqeer, resident of village Hamoka, District Khushab. The dead body was brought by Muhammad Bashir, Police Constable No.91 and it was identified by Mehboob Elahi and Ghulam Sabir P. Ws. He found the following injuries on the dead body:

(1) A fire-arm entry wound just below the medial and of right clavicle. Its size was 1 x 1 c.m. Blackening was present on the margins of the wound. (2) A fire-arm entry wound 2 c.m. below injury No. 1 its size was 1 x 1 c.m. blackening was present around the wound margin. (3) A fire-arm entry wound 4 c.m. medial to left nipple size 1 x 1 c.m. Blackening was present on the wound margins. (4) A fire-arm entry wound on medial aspect of right arm near exilla. Its size of 1 x 1-1/2 c.m. Blackening on the margins was present. (5) A fire-arm exit wound on medial size of right arm in the medial size .3/4 x 3/4 c.m. In his opinion all injuries were ante -mortem and caused by shot gun. Injury Nos. 1, 2 and 3 were sufficient to fatal to cause injury to vital organs, haemorrhage and death individually as well as collectively in the ordinary course of nature. Probable time between: the injuries and death was 10 minutes and the time between death and post mortem was 12 hours. Exh.P.C is the corbon copy of post-mortem report, which is in his hand and signed by him. Exh. P. C/ 1 is diagrams of injuries, it is also in his hand and signed by him. Exh.P.D injury statement and Exh.P.E inquest report which also bear his attesting signatures. After post-mortem, he handed over a well-stitched body alongwith post-mortem report, a sealed bottle containing pellets, last worn clothes of the deceased and police papers to escorting Constable Muhammad Bashir. In cross-examination he admitted that there was blackening around the entry wound on the dead body. The blackening may occur when the injuries are caused from a distance of 15 to 50 feet. His knowledge regarding blackening of any wound is based on his academic study, clinical experience and skill. Volunteers that the blackening mentioned by him was not due to gun powder but due to the heat of the bullets. It is also correct that generally to assess the entry wound and the exit would it is seen that the margin of the wound if inverted it is taken an entry and if everted it is taken as an exit wound. While describing injuries on the person of Bahadar Khan he has not mentioned the inversion or eversion of the edges of the wound but when he mentioned injury No. 1 as entry wound and injury No.2 as exit wound he assessed the same from the criteria of inversion and eversion. The characteristics of the injuries which were observed by him on the person of Bahadar Khan led him to hold that these were fire-arms, he has not mentioned the said characteristic in the report, volunteers the same are not necessary' to be mentioned. I advised Bahadar Khan P.W. to get X-Rays of injuries Nos.l and

2. He has no knowledge whether the injured Bahadar Khan left the hospital without getting the medically X-Rays himself. Report Exh. DA, dated 14-11-199.5 on the police application is in his hands. He has mentioned in this report that Bahadar Khan son of Sher Muhammad left the hospital without X-Rays. It is correct that on the medico-legal certificate there are two columns one showing the date of admission and the other column showing date of discharge. He denied that it is not correct to suggest that he has mentioned word 'immediately' in the column showing discharge. Volunteers that the word 'immediately' corresponds to the column date and hour of report sent to police. It is correct that the column showing date of discharge is blank. Bahadar Khan injured left the hospital without his knowledge. The person who is admitted to hospital, is entered into a bed head ticket. The prescription and the advice of the examining doctor are entered into a bed head ticket. He was informed by the X-Rays Department that the injured Bahadar Khan had not got himself X-rayed. The corresponding holes for the exit entry was not found present on- the clothes of injured Bahadar Khan. He has not mentioned in the post-mortem report whether that the blackening of the wounds on the dead body of Haqnawaz was due to gunpowder or heat of the bullets. It is correct that he has today volunteered in his statement that the blackening found on the dead body of Haqnawaz deceased was due to the heat of the bullet/pellets. He has acquaintance with Malik Khuda Bakhsh Tiwana, Ex-Minister. Again said he has no acquaintance but he has heard his name. He has heard the name of Ghulam Muhammad Tiwana, Ex-M.N.A. a brother of said. Khuda Baksh but he has also no acquaintance with him. It is incorrect that he has declared the injuries on the person of Bahadar Khan as fire-arm wound under the influence of above Khuda Bakhsh and Ghulam Muhammad. He has never informed he police regarding a person who runs away from the hospital without permission of the Medical Authorities. It is incorrect to suggest that he himself got the injured Bahadar Khan to run away, it is also incorrect that he feared that a medical board in respect of the injuries might not be constituted. It is incorrect to suggest that even today he was under the influence of the abovementioned political figures. It is also incorrect that he has stated that the blackening in the present case was due to heat of the pellet. Although he has not maintained any record by means of which he could say that the blackening in this particular case was due to deposit of gun powder yet it is his routine practice that whenever he has to mention the blackening due to gunpowder he described it in the report as blackening due to gun powder. As he has not mentioned gun powder in this case, therefore, he has stated that blackening in this case was due to heat of the pellets. The blackening in this case was due to heat of the pellets (sic). The blackening due to gunpowder is caused from the short distance and it depends on the nature of the weapon used. Dr. Rab Nawaz Medical Officer, D.H.Q. Hospital, Jauhar Abad has appeared as P.W.6. He deposed that on 12-8-1995 he medically examined Hassan Mansoor son of Muhammad Allah Dad and found the following injuries on his person:

(1) Healing wound 1 c.m. x 1 c.m. scab was present on it. Wound was healthy on the front of the left shoulder join below the lateral part of left clavicle. (2) Healing wound 1 c.m. x 1 c.m. with scab was present on it. Wound was healthy on the posterior lateral side of upper part of left arm. (3) Healing wound 6 c.m. x 2 c.m. on the back of left shoulder joint. Wound was contained derbies and pus. (4) Healing wound 1/2 c.m. x 1/2 c.m. on the distal part of left forearm on the radial surface, wound was healthy and scab was form on it. (5) Healing would 1 c.m. x 1 c.m. on the ulner surface of left forearm near wrist-joint, on the wound scab was present and wound was healthy. (6) A stitch wound 9 c.m. x 1 c.m. long on the proximal part and medial surface of right leg wound was healthy but was on the corner some wound was present about 1-1/2 x 1-1/2 c.m. Injury No. 1 is the entry wound of the fire-arm projectile. Pellets were present in chest. Injury No.2 is the fire-arm projectile, injury No.3 is the exit wound of injury. No.2. Injury No.5 is the entry wound of fire-arm projectile, injury. No.4 is exit wound of injury No.5. About injury No.6 it was difficult to give the opinion about its kind of weapon. Injury No. 1 was declared Jaifah, caused by fire-arm. Injury No.2 was declared Ghyr Jaifah Muthahma caused by fire-arm. Injury No.5 was declared Ghyr Jaifah Hashmiah by fire-arm weapon and injury No.6 was declared Ghyr Jaifah Damihah. Exh.P.H is the final report which is in his hand and signed by him. xxx Regarding the injuries of Hassan Mansoor, the doctor deposed that three X-Rays films Exh.D.A/1-3 were also attached with the judicial file, Exh. D.B is the X-Ray Report on the basis of which he had given the opinion Exh. PII. This X-Ray Report is also in his hand, and signed by him. He had immediately informed the police about the injuries of Hassan Mansoor and he had mentioned this fact in Exh.P.C. Hassan Mansoor was admitted in the hospital on the said date for treatment.

10. The perusal of the evidence shows that as per the complainant side they were admittedly on the higher side of the river bank and the appellants were on the lower side of it while the deceased was in-between. If the ocular account is taken correct the injuries should have been from lower to upper side but the medical evidence totally negates it. It means either the P.Ws. have not seen the incident or they are not deposing truly. In either case the matter becomes highly doubtful. In a case of capital punishment the burden to prove guilt beyond any reasonable doubt becomes more strict and heavily lies on the prosecution, which has not been discharged by it, and the appellants are acquitted of the charges giving them benefit of doubt. Further, the bitter election enmity and the cross-cases also show the element of false involvement. Men can tell lie but the circumstances do not. The observation of the learned trial Court that who opened attack and who acted in self-defence is shrouded in mystery. In such circumstance to hold the appellants guilty was not justified under any canon of criminal justice. The next observation of the learned trial Court that the presence of the accused Hassan Mansoor leaves no doubt because of his injury and his option to go underground for a long time without any good explanation and reflects more upon his guilt than innocence and also throws light on his participation in aid of his friend accused Azhar Hayat having motive against the complainant party and against whom the motive also existed on the other sides and that in this occurrence it is complainant party who suffered major loss, therefore, the accused cannot escape the consequent liability is again an opinion formulated on wrong premises. The magnitude of the loss cannot become aw shield for the prosecution; it is to discharge its liability and to stand on its own legs and that too beyond any reasonable doubts. The explanation is available on the record regarding sustaining of injuries by Hassan Mansoor and his explanation in the various suggestions put to the prosecution. Muhammad Sarfraz (P.W.8) to a suggestion answered that it was not within his knowledge that Hassan Mansoor has taken the plea that he had come to play volley ball in the ground where he was attacked by the complainant party and that he had not seen Hassan Mansoor accused in injured condition when 'he had appeared before the police and that it was incorrect that Hassan Mansoor accused had remained hospitalized at Khushab. A suggestion was also put to this witness to which he answered-that it was incorrect to suggest that at the time of occurrence Hassan Mansoor and Azhar Hayat accused were present in the volleyball ground and Azhar Hayat accused was attacked by Baqir, Bahadar, Shahadat and Ghulam Akhtar and that it was incorrect to suggest that Hassan Mansoor had fallen on the ground as a result of the injuries caused by Bahadar, Akhtar, Muhammad Hayat Qutabi and Sher Ahmad Shahbazi had carried him away telling them not to fire at, him any more as he has no enmity with then. For the above reasons in the circumstances of the present case the prosecution has failed to bring the guilt home to the accused beyond any reasonable doubt and the defence taken by both the accused from the very beginning, during the trial and in the arguments appears to be more plausible and fitting in the circumstances of the case. Both the appeals (Criminal Appeal No.759-97 and Criminal Appeal No.38-J/98) merit to be allowed and the same are allowed. Both the appellants 'are acquitted of the charge. They are on bail. Their bail bonds are discharged. N.H.Q./H-42/L Appeals accepted.