2008 PLP 861 (MLD)

MUNIB AHMAD KHAN, J.

On 31-5-1989 at 1500 hours report was lodged stating therein that due to dispute amongst children appellant along with other persons attacked the complaint party and by firing of appellant, Ali Akbar was killed. It has further been stated that another accused Mour also fired at complainant which hit him on his head and another fire of the said accused hit Ghulam Rasool on his forehead while other accused inflicted lathi blows to other persons. The case was tried by the trial Court. Accused Haji and Saindad were charged that they along with other four absconding accused committed the crime. During the trial Saindad died and case was proceeded only against the appellant. Learned counsel has argued that the evidence against the appellant is full of doubts as complainant Muhammad Ramzan and Ghulam Rasool who were allegedly injured in the incident died before recording of their evidence while Investigating Officer of the case was also not examined as he was dead by that time, hence the only evidence prevailed upon learned trial Court was evidence of Misri who was examined as P.W.1. Learned counsel further submits that the evidence of 'Misri could not be relied as his version was contrary to the factual position recorded by the police as well as by the doctor in his medico legal report. He submits that Misri has stated in his evidence that police came at the place at 1200 hours while the time of report as per F.I.R. is 1500 hours and according to the inquest report police reached at the place of incident at 1550 hours. Learned counsel has further submitted that according to the said witness other two persons i.e. Muhammad Ramzan and Ghulam Rasool received fire-arm injuries on their 'head and forehead but according to the medical report both these persons have received injuries with hard and blunt substance and that injuries to the deceased Ali Akbar cannot be attributed to the accused as no weapon was recovered from the appellant nor there was another proof to attribute the bullet/cartridges which caused the death of the deceased to the appellant. On the other hand Mr. Mushtaque Ahmed Abbassi learned Assist. A.G. has not disputed the above controversy coming on record but has submitted that since accused was arrested after a long time, therefore, no recovery was made from him. Learned Asstt. A.-G. has submitted that apart from evidence of Misri, there is no evidence as complainant Muhammad Ramzan and injured Ghulam Rasool have died during the trial while the Investigating Officer has also died. After the arguments, I have observed that evidence of Misri is the only material, he has been examined as P.W. (Exh.4), the relevant portion of evidence is as follows:- "....Mour fired from his gun at Ramzan which hit at his head. Mour repeated fire which hit Ghulam Rasool Sangi at forehead, Haji Ghulam Nabi fired at Akbar which hit him at the below shoulder. Akbar died on the spot. Accused decamped. I remained over dead-body of Akbar, while complainant Ramzan 1 and P.W. Ghulam Rasool Sangi went to Police Station for report." In cross-examination the said witness has admitted that police came at the place of incident at about 12-00 hours. On the other' hand P.W.2 Doctor Khursheed (Exh.6) stated that injured Ghulam Rasool has two injuries which was simple in nature and substance used was hard and blunt while in respect the Muhammad Ramzan he has stated that he has one injury which were simple in nature and the article used was blunt and hard. The evidence of Doctor in respect of both the injured belies the statement of Misri who has stated that both Ghulam Rasool and Muhammad Ramzan received fire-arm injuries on their head and forehead. According to (Exh.75), which is Mashirnama of Wardat, it was prepared at 1550 hours, it means police reached at the place at that time and not at 1200 hours as stated by Misri. In the above circumstances, the only evidence of Misri, when it is in conflict with medical evidence as well as not going with the police record, cannot be relied. Hence giving benefit of doubt to the appellant, I set aside the c impugned judgment, dated 5-11-2004. By short order of today, the appeal was allowed and above are the reasons. H.B.T./H-7/K Appeal allowed.