2002 PLP 2839 (YLR)

Through this appeal judgment dated 12‑12‑2000 passed by learned Additional Sessions Judge, Kasur has been challenged by which the appellants were found guilty of the offence under section 302(b), P.P.C. and have been convicted and sentenced for life imprisonment each alongwith compensation of Rs.50,000 each under section 544‑A, Cr.P.C. and in case of default in payment of compensation, the appellants have to further undergo two months' R.I. each. Muhammad Riaz and Muhammad Nawaz, accused, were acquitted. This judgment has been passed in case F.I. R. No.59/ 1995 dated 22‑3‑1995 under sections 302/148/149, P.P.C. registered at Police Station Changa Manga, District Kasur.

2. Brief facts of the prosecution case as narrated by the complainant, Muhammad Ashraf, P.W.4, are that he worked as labourer and his son Muhammad Akram also worked as labourer at Lahore, who used to remain sick and came to village. At about 12‑10 a.m.on 22‑3‑1995, the complainant alongwith his said son Muhammad Akram and his daughter Mst. Maqboolan Bibi was going to their house, when they reached near Chowk Kumbey Wali, the accused Niamat armed with rifle, Asghar Ali, armed with rifle, Shaukat Ali armed with rifle, Ishaque armed with .12 bore gun and Nawaz and Riaz, empty‑handed appeared. Nawaz alias Baja and Riaz, accused, abused them and made Lalkara to teach lesson to Muhammad Akram and asked other to kill them, on which Niamat fired hitting on the left ear of Muhammad Akram, second shot was fired by Asghar, appellant, hitting on front side of left shoulder of Muhammad Akram, Shaukat Ali fired with rifle hitting on left of the neck, Muhammad Ishaq fired at the son of complainant, who fell down. It is further alleged that Niamat and Asghar continued firing on Muhammad Akram in fallen condition. The motive for the occurrence has been alleged that Asghar is real brother of the complainant while Shaukat and Ishaq are his real nephew and about quarter to two years ago younger son of the complainant was murdered by the accused of this case and Muhammad Akram deceased used to pursue the case and three days ago his statement was recorded and the accused due to this reason in connivance with other close relative Nawaz and Riaz had committed the murder of Muhammad Akram.

3. The complainant got registered this case at the police station through the above said F.I.R. which is Exh.P.W.4/1. Javed Mirza, Sub‑Inspector Station House Officer, Police Station Changa Manga went to the spot, prepared the inquest report, sent the dead‑body to mortuary and took into possession the blood‑stained earth. While, the accused Riaz and Nawaz were arrested on 15-9‑1998 and 14‑1‑1998 by Khalid Pervaiz, P.W.12. Niamat Ali was murdered while Sahukat Ali accused was declared proclaimed offender while Asghar and Asghar Ali were arrested by P.W.8 and P.W.10 on 4‑8‑4995 and 1‑12‑1995 respectively. Nothing was recovered from the appellants. After completion of investigation the challan was submitted in the Court of learned Additional Sessions Judge, who framed the charge, which was denied by the appellant and claimed trial.

4. The prosecution in order to prove the guilt of the accused produced 12 witnesses. P.W.1 Muhammad Zakaria, Head Constable stated that he was posted as Muharer on 22‑3‑1995. Blood‑stained earth in sealed parcel was deposited in Malkhana, which was kept intact and handed over the same to Muhammad Arshad Constable, P.W.2 who deposited the same intact to the office of Chemical Examiner, Lahore on 15‑6‑1995. P.W.3 inspected the spot and prepared the, site‑plan Ex.P.W.3/1 and Ex. P. W.3/2. P. W.4 Muhammad Ashraf, is the complainant. He supported the prosecution story. P.W.5, Dr. Fawad Ali Shah, has conducted the post‑mortem examination of the dead body and found six wounds on the person of deceased. According to him injuries Nos.3 and 5 individually and collectively were sufficient to cause the death in ordinary course of nature. P.W.6 Riaz Ahmad supported the ocular account given by P.W.4 complainant P.W.7. Muhammad Sarwar, is another eye‑witness of the occurrence. P.W.8 Imtiaz Ahmad Bhalli, Inspector had arrested Muhammad Ishaque on 1‑12‑1998 in this case. P.W.9 Javed Mirza, D. S. P, SDPO Saddar Khanewal has investigated the case at initial stage. He registered the F. I. R. on the statement of complainant. P.W.10 Muhammad Rafique Inspector had arrested Asghar Ali, appellant and sent him to Judicial Lock‑up. P. W.11, Khan Muhammad, Constable took the dead body to the Mortuary P.W.12, Khalid Pervez, Sub‑Inspector and arrested Riaz Ahmad and Muhammad Nawaz, accused. After completion of production case the accused in their statements under section 342 Cr.P.C. had denied the allegations levelled against them and on question why is this case against you they made same statement in the following words:‑ "In the case of Mansha I intervened for the compromise between the complainant party and accused being the relative of both the parties. Due to this misunderstanding complainant party involved me in this case. In fact, I was in Chak No.46/51‑L, Tehsil Mian Channu District Khanewal at the time of occurrence. P. Ws. are the interested witnesses and close relative of the complainant 'party due to the relationship they had deposed falsely." D.W.1 Muhammad Hussain S.I., was produced, who stated that according to his investigation, the accused persons were innocent. After hearing the arguments of both the learned counsel, the impugned judgment was passed.

5. The learned counsel for the appellants contended that it was an unseen occurrence, Muhammad Akram was murdered in night time and subsequently due to enmity the appellants have been involved in this case. All the relatives of appellants including all their family members were involved in the case by attributing one injury to each. It is further contended that the eye‑witnesses are inimical towards the appellants and other family members as according to their own version Muhammad Mansha; son of the complainant, has been murdered about quarter to two years before and that case was under trial and the accused party was also facing trial in that case, in such circumstances, previous enmity is established and it can safely be said that all the eye‑witnesses produced by the prosecution were inimical towards the appellants. He further contends that their statements are contradictory to each other on material point; Muhammad Ishaq appellant according to them had fired in the air with .12 bore gun, while other accused fired with their rifles on the deceased Muhammad Akram, but the Doctor who conducted post‑mortem has stated that there was no injury on the person of deceased by fire on .12 bore gun. In such circumstances, the medical evidence is in contradiction with the ocular account. It is further contended that the complainant is not a man to be relied upon as he had entered into compromise in the case of murder of Asghar, who was murdered after the occurrence and on' the basis of compromise between the complainant and appellants the accused were acquitted in the said case of double murder but the complainant resiled from the compromise in the turn of appellants.

6. On the other hand, the learned State counsel has also stated that the appellants have been named in the F.I.R. which was lodged with promptitude and all the witnesses stated that the appellants participated in the occurrence.

7. I have heard the learned counsel for parties and have perused the record, carefully. The prosecution in order to prove the guilt of the accused/appellants has produced three eye‑witnesses. The complainant Muhammad Ashraf, P. W.4 1 who during the cross‑examination admitted the previous enmity between the appellants) and complainant party. It has also been admitted that there were number of houses around the chowk, but not a single witness of that locality made a witness, who had witnessed the occurrence. Relationship of the witnesses is admitted, that Muhammad Riaz is cousin of the complainant and Muhammad Sarwar is son of his cousin and husband of his daughter. He also admitted that Muhammad Mansha son of the complainant was murdered by the accused persons and in that case Niamat, Asghar, Ishaq, Shaukat and Arshad were accused. He stated that it is correct that Asghar, Ishaq and Shaukat were got discharged by the police. He also admitted that after this occurrence two girls were murdered in the village, one was Pheekan who was wife of Asghar and the other was Halima, who was daughter of Asghar: It is further admitted that in the murder case of said women the complainant, Riaz, Sarwar, Aslam Anwar, Liquat and Riasat were the accused and the complainant of that case was Niaz Ahmad. It is also admitted that the complainant and other accused were acquitted in that case due to compromise and the compromise deed was signed by the complainant. He also stated that it, is correct that at the time of effecting of said compromise, compromise regarding this case was also mentioned and he signed the same, but he volunteered that he signed the same due to fear of the accused. He also admitted that Amanat also signed the compromise deed. During the cross‑examination he denied the existence of dispute with Anyatan wife of Sardara, but he admitted that Sardar got registered a case against him in which he was arrested. He admitted that Manda Jatt is known to him and he also admitted that Mansha son of the complainant had committed theft in the shop of Manda and a case was registered. He also admitted that a quarrel between Mansha and Shaukat took place and compromise was effected after registration of the case. He also admitted that a quarrel took place between Muhammad Akram deceased and Mukha Teli, in which his son was arrested. He denied the suggestion that Mansha and Akram were member of Qabza Group. Similar statements of Muhammad Riaz and Muhammad Sarwar were recorded and they have also admitted certain facts during cross‑examination. They also admitted the close relationship with the complainant. Riaz P.W. has admitted that during the occurrence number of persons had gathered, who had seen the same and he stated this fact to the police, but the police had not joined them in the investigation. It is admitted by them that the persons mentioned during cross‑examination were eye‑witnesses of the occurrence and had no enmity or grudge against the appellants. The other witness Muhammad Sarwar is also close relative of the complainant. He stated the he is son‑in‑law of the complainant and he is also paternal cousin of the complainant. From bare perusal of statements of these two witnesses it has become crystal clear that they had enmity with the accused/appellants and their statement requires strong corroboration for conviction of the appellants in a case of capital punishment. The medical evidence is also not in line with the ocular account as according to Doctor Injury No.4 attributed to Shaukat is an exit wound. Similarly the Doctor has clearly stated that the injuries were caused by .12 bore gun and two metallic pieces were recovered from the dead‑body during post‑mortem examination. Therefore it can safely be said that the injuries were not caused by rifle as is alleged by the complainant party and were caused with .12 bore gun, but only one accused has been stated to have been armed with .12 bore gun. All the three witnesses are consistent to state that he did not fire at the deceased and did not cause any injury to the deceased. In such circumstances, it cannot be said that the medical evidence is in line with the ocular account. Nothing was recovered from the appellants. In such circumstances, there is no independent corroboration to connect the appellants with the commission of the offence.

8. In view of the above discussion, I am fully convinced that the prosecution has miserably failed to bring home the guilt against the appellant. Therefore, the impugned judgment of conviction and sentence is set aside by accepting this appeal and the appellants are acquitted of the charge by extending the benefit of doubt in their favour. They are in Jail and shall be released forthwith, if not required in any other case. H.B.T./A‑501/L Appeal accepted.