' Appellant Nazim Khan through the instant" appeal has assailed his conviction and sentence recorded vide the judgment dated 25-1-2001 by Muhammad Naseem Akhtar Khan, learned Additional Sessions Judge. Gujrat in case F.I.R. No.568 registered under section 302/324 read with section 34, P.P.C. With Police Station Dinga, Tehsil Kharian, District Gujrat on 31-10-1998.
2. He was convicted and sentenced as follows:-- Under section 302, P.P.C. To imprisonment for life and to pay compensation Rs.50,000 to the legal heirs of the deceased or in default thereof to further undergo six months S.I.
(ii) Under section 324, P.P.C. To five years R.I. And to pay compensation Rs.10,000 to injured Abdul Ghafoor and in default thereof to further undergo two months S.I.
' Both his sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
3. The facts in detail have been incorporated in the impugned judgment. Hence, I avoid to burden this judgment/record unduly by repeating all those here.
4. However, the brief facts relevant for the disposal of the instant appeal are that the appellant Nazim Khan along with Munawar Hussain and Tanveer Ahmad was tried under sections 302 and 324 read with section 34, P.P.C. In the said case for on 31-10-1998 at about Deegar. Wela, in village Dinga Khurd committing the Qatale-Amd of deceased Muhammad Sadiq and attempting on the life of child Abdul Ghafoor.
5. They all had pleaded not guilty to the charge.
6. The prosecution at their trial mainly has relied upon it's ocular testimony, medical evidence, recovery of crime weapon 12-bore gun, P.I. From him and the crime empty P.2. From the spot and the motive.
7. The learned trial Court relied upon all such pieces of evidence against him, while rejected his plea of innocence. It, however, found the involvement of his aforesaid co-accused in the matter not above doubt. It, therefore, has avquitted them of the charge giving them the benefit of the same.
8. The appellant feeling himself dissatisfied with the impugned judgment of his conviction and sentence has attacked the same by way of the instant appeal as said above.
9. It has been contended on his behalf that the eye-witnesses are related to the deceased as well as inimical towards him and so were not worthy of placing any reliance; that they both are also chance witnesses and so absolutely were not worthy of attaching any credence; that there is glaring contradiction between the ocular testimony and the medical evidence; that recovery of gun P.I. From him is inconsequential as the report of Blastic Expert was not put to him in his statement under section 342, Cr.P.C. And so such report requires to be ruled out of consideration and in this regard reliance has been placed upon the case of Kamir v. The State 1974 PCr.LJ 65 Lahore (DB); that motive is .Too far fetched to satisfactorily connect him with the charge against him; that the documents Exhs. P-B, P-C, P-J and P-L do not contain the name of any of the accused, which heavily suggests that these documents were prepared anti date and so the investigation in this case also seems not fair and honest and in such circumstance this too could not be used against him; and that in any case his conviction and sentence is not liable to be sustained.
10. Conversely the learned State counsel has supported the impugned judgment saying that the above mentioned pieces of evidence of the prosecution have rightly been relied upon as these have led to the hypothesis of guilt of the appellant beyond any shadow of reasonable doubt.
11. I have carefully considered the submissions made from both the sides with the help of available record.
12. The ocular account of the prosecution has been unfolded by Ishfaq Ahmad (P.W. 5) and complainant Riasat Ali (P.W.6).
13. Both these witnesses are closely related inter se and to the deceased. Riasat Ali is the maternal nephew of the deceased. He has admitted that all the P.Ws. In this case are related to him. It may be mentioned here though that Ishfaq Ahmad had denied the suggestion put to him by the defence that he is related to the P.Ws. Ibrahim, Muhammad Hussain, Ismail and Riasat Ali but he has admitted that his mother Mst, Kaniz Begum is the niece of P.W., Muhammad Hussain, who is real brother of the deceased. Thus, both these Witnesses are related inter se and to the deceased as said above.
14. There was also background of enmity between the complainant party and the accused. It was suggested to Riasat Ali P.W. That case under sections 324/337-F(i), 337-T(ii), P.P.C. Was registered with Police Station Dinga against him, his son Iftikhar and brothers Liaqat Ali and Razzaq for having injured Sadiq deceased. He though has shown his ignorance about the same but -has not clearly denied the same. This shows that there was definite background of enmity between the parties prior to the occurrence. These witnesses, therefore, can validly be said to be inimical towards the appellant's side. It, therefore, was not proper to have placed explicit reliance upon them without independent corroboration to their testimony.
15. The 'prosecution in this case has tried to seek corroboration from their evidence from the medical evidence. These eye-witnesses have stated that the appellant had fired with gun, which hit the deceased at his chest. It is quite important to mention here that Riasat Ali P.W. Has clearly stated that the fire made by the appellant had hit the deceased on front upper part of his belly.
This shows that they both were unanimous that the fire made by the appellant to the deceased had hit him on the front side of his chest.
16. Dr. Masood Ahmad Bangish (P.W.13) on autopsy ' had found the following injuries on the dead body of the deceased:--
(i) A fire-arm entry wound 3 x 2 c.m. With inverted margins back of left side of chest, 1-1/2 c.m. Away from the mid vertebral line, blackening was present around the edges of wound.
(ii) Five fire-arm exit wounds each measuring 1/2 x 1/2 cs.m. Scattered in an area of 7 x 5 c.m. Over the left side of chest all the edges were averted.
17. One of these wounds was of an entry and the other of exit. The entry wound was on the back of left side of the chest of the deceased. He in the cross-examination has stated that only exit wound was on the left side of the chest of the deceased. This means that the exit wound was on the front side of his ,chest and not the entry.
18. There is glaring contradiction between the evidence of the doctor and that of the two eye- witnesses. This fact is irreconcilable to the idea that the eyewitnesses had seen the occurrence.
They could have given true account of the infliction of injury to the deceased, if they had seen the incident. This rather shows that they had not seen the incident as narrated by them and it perhaps had taken place in some other way.
19. Besides than tkis, there had also been found blackening around the edges of the entry wound of the deceased. According to the eye-witnesses, the appellant with gun had fired at the deceased from a distance of three Karams. The fire from such distance could not cause blackening on the wound of the deceased. This shows that the account of infliction of injury to the deceased given by the eye-witnesses is not correct. The medical evidence, therefore, has caused dent on the veracity of the eye-witness account of the occurrence. It in no way supports the same.
29. The appellant as appears from the eye-witness account had never aimed fire at the child Abdul Ghafoor. He as per the same was in the lap of his father at the time of occurrence. The stray pellets, thus seem to have hit him accidentally.
21. As regards the recovery of crime weapon 12 bore double barrel gun P.1 from the appellant, the evidence regarding the same was furnished by Liaqat Ali (P.W.3) and Pervaiz Mehdi, S.-I. (P.W.13).
Liaqat Ali is related to the deceased. This has so been admitted by his own self. The parties as said above had background of enmity. So, he seems to be not a reliable witness in this case on this aspect. As regards Pervaiz Mehdi, S.-I., he is Investigating Officer of the case.. 'There has not come forward any independent person to support this recovery. Hence, his evidence too could not be safely relied upon in this regard. The evidence of recovery of the said weapon from the appellant, therefore, is of no consequence. The learned trial Court has wrongly relied upon the same. The same, therefore, is discarded.
22. As regards the report Exh.P.Q of Forensic Science Laboratory, the same though is positive but it was never put to E the appellant in his statement recorded under section 342, Cr.P.C. So, the same could not be validly used against him in this regard. Reference in this regard is made to the case of Kamir v. The State 1974 PCr.LJ 65 Lahore (DB). The same, therefore, is ruled out of consideration.
23. The motive set up by the prosecution is too far fetched to prompt the appellant to take away the life of the deceased. Riasat Ali P.W. In this regard has submitted that the motive behind the occurrence was that Ismail, the father of acquitted accused Tanveer was murdered by the deceased about twenty five years ago. According to him, this has played as motive in the murder of the deceased. First of all it could be Tanveer accused, who may be with any such motive to take away the life of the deceased, if at all it may be believed to be so. The said accused has been acquitted by the learned trial Court taking his involvement in the matter to be doubtful. Secondly, the motive in no way is directly relatable to the appellant.
24. Even otherwise, admittedly during this, long period of 25 years till the occurrence no untoward incident had taken between the parties. So, it is not believable that all of a sudden after lapse of long twenty five years, the appellant had thought of taking away the life of the deceased on grudge over the same. This motive, thus does not link the appellant with the murder of the deceased satisfactorily. It is too far fetched to be believed. The immediate motive in this case is shrouded in mystery. However, the motive set up by the prosecution has not been proved convincingly. The same too recoils on the veracity of it's version. The learned trial Court, thus has wrongly taken the same to be a corroborative circumstance to the ocular testimony.
25. Due to the above reasons, I am of the view that the prosecution has failed to prove the charge against the appellant beyond any shadow of reasonable doubt. The impugned judgment to the extent of his conviction and sentence, therefore, is not liable to be sustained.
26. The instant appeal, therefore, is accepted, the impugned judgment to that extent is set aside and appellant is acquitted of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case.