1996 P Cr (PLP)

RAO NAEEM HASHIM KHAN, J.

Khuda Bakhsh alias Khudi (25) with Rahim Bakhsh alias Rahiman was sent up for trial by Police Station Dajal, District Rajanpur, for an offence under section 302/34, P.P.C. Learned Judge, Punjab Special Court NO.VII under the Suppression of Terrorist Activities (Special Courts) Act, 1975, vide judgment, dated 26-11-1991 gave benefit of doubt to Rahim Bakhsh alias Rahiman and acquitted him. Khuda Bakhsh alias Khudi was, however, found guilty under section 302, P.P.C. and sentenced to death. The convict Khuda Bakhsh has appealed while complainant Gul Muhammad filed a Criminal Revision No.87 of 1992 against acquittal of Rahim Bakhsh alias Rahiman. Both these matters will be disposed of by this single judgment.

2. Prosecution story, in brief, as disclosed in F.I.R. (Exh.P.E./1) registered on the basis of statement (Exh.P.E.) made by Gul Muhammad (P.W.4) was to the effect that on 17-12-1990 at about 8-45 a.m., he and Ahmad Bakhsh deceased were present in their lands, on hearing the sounds of firing from the side of house of .Rasool Bukhsh, ran towards his house. When they were about 2-1/2 squares away from the said house, they saw Khuda Bakhsh alias Khudi, appellant, armed with klashnikov and Raheeman Bukhsh armed with rifle coming and firing in the air. Seeing Ahmad Bakhsh, deceased, Khuda Bukhsh alias Khudi appellant raised Lalkara that he had come to teach a lesson to Rasool Bakhsh and Ahmad Bakhsh in respect of registration of their case against him. The deceased said that Rasool Bukhsh had hidden somewhere and ordered Ahmad Bukhsh to recite the Kalimah and meanwhile he (appellant) fired with klashnikov, hitting on the neck of Ahmad Bukhsh, who fell down and died at the spot. The accused thereafter-proceeded towards the west, but were chased by the witnesses and other neighbours. The accused person took refuge in the house of Faqira. The house was surrounded by the witnesses and public. The occurrence was witnessed by Gul Muhammad complainant, Abdul Sattar, Bashir Ahmad and others.

3. The motive as set up in F.I.R. was that some 9/10 months prior to the occurrence,. Rasool Bukhsh, the brother-in-law of Ahmad Bukhsh deceased had got registered a case of theft of cow against Khuda Bukhsh appellant and others. Khuda Bukhsh appellant and his relatives on coming to know about the said case made threats to Rasool Bukhsh and Ahmad Bukhsh. On account of said case, at the instance of Faqira, the accused committed the present occurrence.

4. The occurrence took place on 17-12-1990 at 8-45 a.m. in the area of Mouza Rakh Azmat Wala 12 kilometres away from Police Station Dajal, District Rajanpur. F.I.R. (Exh.P.E./1) was registered on the statement (Exh.P.E.) made by Gul Muhammad P.W.4 recorded by Syed Sher Muhammad S.H.O. P.W.9.

5. Syed Sher Muhammad, S.H.O. P.W.9 after sending the statement of Gul Muhammad Exh.P.E. to police station through Haq Nawaz, Constable for registration of case, went to the house of Faqir Hussain alias Faqira. Khuda Bukhsh and Rahim Bukhsh were present in a room of said house. The said room was chained from inside. On his call the accused persons opened the door. He arrested both the accused namely Khuda Bukhsh and Rahim Bukhsh. He recovered klashnikov P.1 alongwith an empty magazine P.11 from Khuda Bukhsh and made into a sealed parcel vide memo. Exh.P.F. From the possession of Rahim Bukhsh, he recovered .303 bore rifle P.2 and made into sealed parcel vide memo. Exh.P.G. The sketches of klashnikov P.1/A and that of P. 2/A were drawn by him. He also prepared the sketch Exh.P.K. of said place of recovery and arrest vide memo. Exh.P.K. He reached the spot, examined the dead body and prepared injury statement Exh.P.C. He handed over the dead body to Abdul Rub, Constable for escorting the same to hospital for autopsy. Blood-stained earth was seized from the spot murder of Ahmad Bukhsh, made into sealed parcel vide memo. Exh.P.H. During inspection of the spot, he took into possession crime-empty Exh.P.3 of klashnikov from the place, where Khuda Bukhsh had fired at Ahmad Bukhsh, 29 more empties of klashnikov and 9 empties of rifle found from the various places and made sealed parcel vide memo. Exh.P.I. He recorded the statements of witnesses. Abdul Rub, Constable produced last-worn blood-stained clothes P.5 to P.9, shoes P.10/1-2, which were taken into possession vide memo. Exh.P.K. On 5-1-1991 through Muhammad, draftsman, site plans Exhs.P.D, P.D./1 and P.D./2 were got prepared.

6. The ocular account was furnished by Gul Muhammad P.W. Abdul Sattar, P.W.5 and Allah Bachaya P.W.7.

7. Dr. Ali Asghar, Medical Officer, T.H.Q. Hospital, Jampur had conducted the post-mortem examination on the dead body of Ahmad Bukhsh on 17-12-1990.

8. At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He neither appeared in his defence on oath nor produced any defence evidence.

9. It is submitted by the learned counsel for the appellant that eye-witnesses are interested, being related to deceased and inimical towards the appellant, cannot be relied upon without independent corroborative evidence; that medical evidence is contradicted by the ocular account which indicates that eye-witnesses were not present at the spot; that the motive is not direct towards the deceased, hence it is far fetched and shrouded in mystery; that according to F.I.R. independent witnesses were present, but they were not produced that prosecution has failed to prove the case against the appellant beyond shadow of doubt.

10. The contentions are opposed by the learned State Counsel.

11. We have heard the arguments and gone through the file. The prosecution, in order to establish its case, has mainly relied upon ocular account furnished by Gul Muhammad P.W.4, Abdul Sattar P.W.5 and Allah Bachaya P.W.7. All of them had given detailed account about the occurrence ascribing specific role to the appellant. Each of them stated that they were present at the spot, when appellant Khuda Bukhsh alongwith Raheeman Bukhsh came Aid raised Lalkara. Khuda Bukhsh alias Khudi appellant injured Ahmad Bukhsh by firing shot, who ultimately succumbed to his injuries. The witnesses were put to the test of cross-examination. The motive is absolutely far fetched and shrouded in mystery and is not directly linked to the deceased. Had it been true Khuda Bukhsh alias Khudi would. have killed Rasool Bukhsh or his son Allah Bachaya P.W.7, present at the spot. Medical evidence is in direct conflict with the ocular account. Gul Muhammad P.W.4 stated that Ahmad Bukhsh deceased was fired upon at the distance of 25 Karams, while Allah Bachaya P.W.7 stated that the distance of fire was 40 Karams. Dr. Ali Asghar P.W.1 stated that fire was shot from a distance of 5/6 feet. We, therefore; hold that the witnesses are interested, being related to deceased and inimical towards the appellant. Independent witnesses though present at the spot were not produced in Court during trial. As such, the eye-witnesses do not inspire confidence and cannot safely be relied upon. We found weight in the submission of the learned counsel for the appellant that witness had not witnessed the occurrence, and appears to be an unseen murder. We further hold that the prosecution case is not above suspicions, rather failed to prove its case against the appellant beyond shadow of doubt. We, therefore, accept the appeal and acquit the appellant, giving him the benefit of doubt. He shall be released forthwith, if not required in any other criminal case. For the reasons recorded in our detailed judgment of even dated in Criminal Appeal No.373 of 1991, this Criminal Revision is dismissed as having no merits. N.H.Q./K-220/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.