1986 P Cr (PLP)

Through the present appeal viz. Criminal Appeal No. 97 of 1981, Abdul Hamid has challenged his conviction and sentence. Ashfaq Ahmad complainant has filed criminal revision (Criminal Revision No. 350 of 1981) challenging the acquittal of Abdul Majid, Ghulam Haider and Abdul Razzaq from offence punishable under section 302, P.P.C. The said criminal revision has been ordered to be heard alongwith the present appeal. Ashfaq Ahmad complainant has also filed another criminal revision viz. Criminal Revision No. 217 of 1981, seeking enhancement of sentence from imprisonment for life to death awarded to Abdul Hamid. This criminal revision has since been admitted to regular hearing and notice has been issued to the respondent to show cause why in case his appeal fails sentence should not be enhanced to death. The aforementioned three matters shall be disposed of through the present judgment.

2. The occurrence in this case took place on 15‑4‑1977 at 12‑15 noon at Chowk Chhamal Road, in Shakargarh, at a distance of three furlongs from Shakargarh Police Station. The occurrence was reported through statement Exh.P.E. by Ashfaq Ahmad P.W. 6 at 8‑00 p.m. which was recorded by Muhammad Aslam S.I. P.W.11. Formal F.I.R. Exh.P.E/1 on the basis of statement Exh.P.E. was recorded at Police Station, Sharkargarh at 8‑15 p.m. by Fazal. Hussain M.H.C. P.W.5.

3. Regarding motive it has been alleged that Abdul Hamid appellant and other members of the accused party were suporters of Anwar Aziz, whereas the complainant party supported Abdul Rahim, a rival candidate as against Anwar Aziz. The motive has been disclosed in the private complaint filed by Ashfaq Ahmad complainant more than a year after the occurrence while in the F.I.R. it has been alleged that in the morning of the day of occurrence, Muhammad Aslam deceased and Abdul Hamid accused exchanged hot words and Abdul Hamid held out threat of dire consequences 'to the deceased, resultantly the appellant murdered him.

4. As for the main occurrence, it has been stated that on the fateful day, two Advocates of Shakargarh namely Latif Khan and Idrees Khan were injured during the procession of Advocates when attacked by people by Soda‑water bottles. On that day the complainant Ashfaq Ahmad had come to Shakargarh to fetch a tube well mechanic. On coming to know of the incident, he went to Shakargarh hospital to see the injured Advocate. From there he went to the shop of Muhammad Sharif Shamsi. At 12‑15 noon, Latif Khan and Idrees Khan the aforementioned two Advocates, and Akmal son of Latif Khan passed in front of the shop of Muhammad Sharif, Muhammad Aslam deceased also that time passed in front of that shop. He was 3/4 paces behind Latif Khan etc. He saw Ashfaq Ahmad complainant in the shop of Muhammad Sharif Shamsi. He called the complainant and told him that he should accompany him back to village Aumtala. The complainant got up and accompanied the deceased. Muhammad Latif son of Farzand Ali and Manzoor Ahmad son of Muhammad Abdullah also started accompanying them. They proceeded towards Lorry Adds and when reached at Chowk Chhamal in front of the shop of Maulvi Ilyas Khan, sweet-meet seller, the aforementioned four accused i.e. Ghulam Haider armed with Sots, Abdul Hamid appellant armed with single barrel gun, Abdul Razzaq armed with an iron bar and another person who has not been named in the F.I.R. armed with Sots emerged abruptly at the scene. Ghulam Haider threw a challenge. Muhammad Aslam started running away but Abdul Razzaq gave him an iron bar blow on the arm while Abdul Hamid reached near Muhammad Aslam and fired at him at the back. The unknown person remained standing. The complainant and the P.Ws. raised hue and cry and took shelter behind the shop. The accused thereafter ran away. The complainant and P.Ws. then went to Muhammad Aslam and transported him to the hospital but he died on the way. The complainant thereafter went to his villages Maingri and Gumtala for giving information of the occurrence and thereafter, he came to the hospital and made statement Exh.P.E. before Muhammad Aslam S.I. P.W.11.

5. Abdul Hamid appellant was arrested on 17‑4‑1977 by Muhammad Aslam S.I./S.H.O, and Abdul Razzaq was arrested on 19‑4‑1977, but no recovery whatsoever has been effected from any of the accused.

6. As already stated Ashfaq Ahmad complainant on 18‑6‑1978, filed a private complaint regarding the same occurrence. In the complaint besides the aforementioned accused, he alleged that Anwar Aziz, Muhammad Arif, Advocates, Muhammad Akram and Muhammad Aslam Butt S.H.O. were also liable for the murder of Muhammad Aslam deceased. The complaint was sent to the Ilaqa Magistrate under section 202, Cr.P.C. for inquiry. After inquiry he reported that no case was made out against Anwar Aziz, Muhammad Arif, Advocates, Muhammad Akram and Muhammad Aslam Butt. As per his report, the accused which faced the trial and who has been nominated in the State case were held liable for the crime. The learned Additional Sessions Judge vide his order dated 5‑4‑1980, deleted the names of Anwar Aziz, Muhammad Arif, Muhammad Akram and Muhammad Aslam Butt from the complaint. He summoned the same, accused against whom the challan had been submitted by the police. The learned trial Judge, therefore, relying on Zulfikar Ali Bhutto v. The State P L D 1978 S C 40 consolidated the challan case with the complaint case and recorded proceedings in the complaint case. Witnesses‑ cited in the challan case have been examined at Court witnesses.

7. P.W.1 Dr. Nasir Ahmad; then posted as Senior Medical Officer, Narowal, performed autopsy on the dead body of Muhammad Aslam deceased, on 15‑4‑1977 at 4‑30 p.m. He noticed the following injuries on the dead body:‑- (1) A fire‑arm wound 7 / 8" x 7 / 8" x more or less circular in fashion on the right real angle, 1" right to midline with blackening of the, skin, 1 " around the wound and charring of the edges of the wound. There was black smoky material on the shirt around the perforated' hole and on the hole of the Banyan. That was also perforated. The direction of the wound was forward upward inward to the left side of chest after entry into the abdominal cavity, the pellets had ruptured the right renal vessels causing fracture into pieces of second and third lumber vertebrae (bodies shuttered into pieces). The pellets had ruptured the inferior venacava and perforated the abdominal aorta, small intestines mesentery and stomach. Two pellets perforated the left side of disphragn and left lung. Dotts of Gatta were found in the abdominal cavity. Two pellets were lodged in the left side chest wall and two left side upper abdominal wall from where they were removed. There was free blood in abdominal cavity. 60 ozs was collected from abdominal cavity. There was bleeding from the wound of entry on handling the body. (2) An abraded contusion, 1 " x ", on the back and inner aspect of right forearm above wrist. The doctor opined that death occurred due to shock and haemorrhage from injury No.

1. This injury was sufficient to cause death in the ordinary course of nature. Both the injuries were ante‑mortem. Injury No. 1 was caused by firearm and injury No. 2 by a blunt weapon. Exh.P.A. is the carbon copy of the post‑mortem report while Exh.P.A./1 is the diagram indicating the location of the injuries.

8. Besides Ashfaq Ahmad P.W.6, Muhammad Yousuf P.W.7 and Manzoor. Ahmad P.W.7 and Manzoor Ahmad P.W.8, have been examined as eye‑witnesses at the trial to furnish the ocular account of the prosecution version. In addition to these three P.Ws., C.W.1 Sadiq Hussain, C.W.2 Abid Hussain, C.W.3 Sardar, C.W.4 Muhammad Sain, and C.W.5 Muhammad Younus have been examined as C.Ws. to furnish the eye‑witness account of the occurrence. These C.W.s disclosed that although at the time of occurrence they were present at their' respective shops around the place of occurrence, they saw two processions, one led by Peoples Party worker and the other by P. N.A. Party workers near Chowk Chammal. The participant of two processions threw brickbats on each other, shots were also fired, but 'they did not see as to who fired at Muhammad Aslam deceased and who caused him injury with the blunt weapon. P.W.6 Ashfaq Ahmad, P.W.7 Muhammad Yousuf and P.W.8 Manzoor Ahmad, of course supported the prosecution case. They held Abdul Hamid appellant liable for firing the fatal shot at the deceased.

9. As already observed, in the present case no recovery from the appellant or any other co‑accused has been effected and thus there is no independent corroboration to the testimonies of three P.Ws. namely Ashfaq Ahmad, Muhammad Yousuf and Manzoor Ahmad Who have also been contradicted by five C.Ws. Out of the eye‑witnesses Ashfaq Ahmad, is brother‑in‑law (Saala) of the deceased. He belongs to village Maingri. He claims his presence at the time as a chance witness, as he claims that he had come to Shakargarh to fetch a tube well mechanic. Muhammad Yousuf P.W.7 and Manzoor Ahmad P.W.8 who too are chance witnesses, have not been relied upon by the learned trial Judge. Manzoor Ahmad P.W. is resident of village Gumtala. Muhammad Yousuf has not been cited as witness in the challan case. He admittedly did not contact the police. He admits his election rivalry against the accused party. In the present case, the report was lodged with the police at 8‑00 p.m. by Ashfaq Ahmad, while the occurrence took place et 11‑15 a.m. this long delay in lodging the F.I.R. by Ashfaq Ahmad remains unexplained. He claims that he was present at the time of occurrence. The Police Station is only at a distance of three furlongs from the place of occurrence. The only explanation furnished by him is that he first went to Villages Maingri and Gumtala to inform his relatives about the occurrence and then in the evening at 8‑00 p.m. he reported the occurrence to the police. This explanation hardly appears to be satisfactory. His presence at the time of occurrence is thus doubtful.

10. In the light of above discussion we have come to the conclusion that the prosecution has utterly failed to bring home the guilt to the appellant beyond any reasonable doubt. We, therefore, allow his appeal set aside his conviction and sentence and acquit him. He shall be set at liberty forthwith if not required to be detained in any other case. The two criminal revisions in the circumstances are dismissed. S.G.D. Appeal allowed.