1995 PLP 1808 (MLD)

4. Dr. Ghulam Farid, P.W.1, Medical Officer, Rural Health Centre, Garh Maharaja on 15‑7‑1990 at 8‑00 a.m. conducted post‑mortem examination on the dead body of the deceased and found the following injuries:‑ (1) A lacerated wound 3 inches x 2 inches on the front of lower part of left thigh just above the left knee joint. (2) A lacerated wound 10 inches x 5 inches on the medial and back side of the lower part of left thigh on back of the knee. Wound No.l appeared to be entrance wound whereas wound No.2 appeared td be wound of exit. The wound is through and through cutting the muscle and femoral vessels and fracturing the femoral bone of the left side. Fracture ends were overlapping reducing the length of the left limb about three inches than the right lower limbs. Plastic vad was secured from the wound. There were two corresponding holes present on the left leg of the pant. (3) A lacerated wound 1 inch x 3/4 inch on the middle and medial side of the right leg. (4) A lacerated wound 1/2 x 1/2 inch on the middle of the lateral side of right leg. The wound was through and through passing through the right calf muscles and wound No.3 appeared to be wound of entrance and wound No.4 was wound of exit. Two corresponding holes were present on the right leg of the pant. Both legs were blood stained. In the opinion of the doctor, the death occurred on account of excessive bleeding by wounds Nos.1 and 2 which were caused by fire‑arm and were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was 20 to 45 minutes and between death and post‑mortem examination was 24 hours.

5. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegation. In answer to a question "why this case and why the P.Ws. deposed against you" he stated that he was falsely involved in this case due to emnity with P.W.9, Muhammad Iqbal. The appellant in his defence has tendered documents Exh.DA. to Exh.D.C.

6. The learned trial Judge believing the prosecution evidence convicted the appellant and sentenced him as stated above.

7. Learned counsel for the appellant vigorously contended that it was an unwitnessed crime which took place when none of the eye‑witnesses was present there. These witnesses were later on imported by the police to depose falsely, at the behst of Muhammad Iqbal P.W.9 who‑had previous enmity against the appellant. The ocular version is being contradicted by the medical evidence. The occurrence took place at Adda Sharif Abad where numerous independent persons were present but none from the locality appeared to support this false prosecution case. The complainant Muhammad Iqbal P.W.8 who is a police constable as per his own admission was not known to the appellant, hence he was not in a position to give correct particulars of the appellant, F.I.R. was recorded at Police Station Garh Maharaja. It appears the F.I.R. was registered after preliminary investigation hence no implicit reliance can be placed on this fabricated documents. Both the eye‑witnesses, as per their own admission, are chance witnesses of the occurrence, and they have failed to justify their presence at the scene. The conduct of the complainant is highly improbable and unnatural, as no person would in its normal senses chase three armed men, when he himself was unarmed. The occurrence took place in the shop of Hakeem Ghulam Abbas, which is a small one and no accused person would in the normal human behaviour confine himself in a cage‑like shop and thus facilitating his arrest by a policeman. The examination of the site plan shows that the witnesses could not see the occurrence from the place where they were standing at the time of occurrence. In view of the above mentioned infirmities, the prosecution has miserably failed to prove its case against the appellant, beyond reasonable doubt.

8. The learned counsel for the State has supported the impugned judgment. He submitted that the appellant is the sole accused, nominated in the case and the F.I.R. was lodged promptly.

9. We have examined the record of the case with the able assistance of the learned counsel for the parties and have minutely considered their respective submissions.

10. No doubt, apparently it appears that the complaint was drafted immediately after the occurrence, but the close examination of the complaint would expose its falsehood. It does not stand to reason why the police constable would draft the complaint himself and sent it through Muhammad Iqbal Police Razakar (P.W.9) to the police station which was at a distance of 15 Km. from the place of occurrence, when he could himself go to the police station and lodge the complaint, as he was attached with the same police station. The reasons given by the complainant for his presence at the Adda are neither probable nor plausible; hence he failed to justify his presence at the spot. According to his, own admission, he had gone to Kot Bahadar for effecting the service of a person who was summoned by the D.I: G., whose name and address he could not disclose in his evidence nor he was aware of the alleged crime committed by that person. As per his own admission, he alongwith Noor Muhammad deceased boarded wagon and was going to Garh Maharaja, but all of a sudden, both of them alighted at Adda Sharif Abad from the wagon and started chasing three persons who were in possession of unlicensed arms and were standing on the road side, without having warrant of their arrest in their possession or any complaint against them in Police Station Garh Maharaja. As per deposition of Muhammad Iqbal P.W.8, he alongwith Noor Muhammad deceased and Muhammad IqbA Police Razakar (P.W.9), all unarmed chased three armed persons including the appellant whom they saw per chance at the roadside at Bus‑stand Sharifabad at 6‑00 p.m. without the assistance of any public man, though present there, as the place of occurrence, being a Bazar, numerous persons were available. In addition to that, the occurrence took place in the shop of Hakeem Ghulam Abbas, which is a small one and is situated in commercial area. Neither Hakeem Ghulam Abbas nor any public man appeared before the Court to support the prosecution version, which leads to this inference that this version was not correct, that is why nobody cared to come forward to depose in favour of the prosecution. It remained a mystery why the appellant who was armed went into that shop which is a small one and is like a cage and the deceased who was unarmed also entered that shop, knowing full well that it had no way to come out of that shop easily. This conduct of the deceased is highly improbable and unnatural, as he would have chosen the path from where he could make good his escape conveniently. Over and above this, the ocular version is being negated by the medical evidence. According to the ocular version, one shot was fired at the IA deceased by the appellant from a close range, but according to the doctor the deceased received two shots and this material contradiction/discrepancy remained unexplained, which makes the prosecution case further doubtful. Even the Investigating Officer conceded before the Court that no person from the locality came forward to support the prosecution case, though he examined the shopkeepers, where the occurrence took place.

11. The defence plea taken by the appellant seems to be more plausible and reasonable that he has been involved in this case due to his enmity with Muhammad Iqbal P.W.9, on account of previous murder, which enmity is not g even denied by the said witness. Even the deposition of Muhammad Iqbal P.W.9 is open to serious objection, as he failed to furnish any reasonable and plausible cause for his presence at the scene. He did not disclose in the Court that he came to Sharifabad Adda, where the occurrence allegedly took place. The site plan is silent on this score as none of the eye‑witnesses pointed out the places where they were present at the time of occurrence. There seems to be substantial force in the submission of the learned counsel for the appellant that it was an unwitnessed crime and these two persons were imported later on to depose falsely in this case, as none of the independent persons from the locality was willing to support the prosecution version. The evidence of Muhammad Iqbal P.W.9 is also being contradicted by the medical evidence and suffers from the same defect as has been noticed in the evidence of Muhammad Iqbal P.W.8; hence it would not be safe to place implicit reliance on this evidence, which is full of infirmities and lacunae, which remained unresolved.

12. In view of the above discussion, it is concluded that the prosecution has miserably failed to prove its case against the appellant, beyond reasonable doubt, so while giving benefit of doubt to the appellant, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set free forthwith, if not required in any other case. The death sentence is not confirmed and the reference is answered in negative. N.H.O./G‑288/L Appeal accepted.