This judgment will dispose of Criminal Appeal No. 681 of 2003 filed by Sana Ullah, Appellant, who was convicted and sentenced by learned Special Judge (Juvenile Justice System Ordinance)/Additional Sessions Judge, Khushab vide judgment dated 31.3.2003 as under:-- Imprisonment for life u/s 302(b) read with Section 34 PPC.
Criminal Revision No. 434 of 2003 filed by the complainant for enhancement of sentence of convict shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 21.6.2002 at 11.30 a.m. Khalas Khan, complainant alongwith his son Sajid Mahmood, as also Ghulam Muhammad son of Atta Muhammad and Ghulam Muhammad son of Muhammad Asghar was sitting at his dera when Sher Khan armed with 12-bore gun and Sana Ullah armed with pistol while sharing common intention, came there.
Sher Khan raised lalkara to Sajid Mahmood that they had come to take the revenge of their insult and in the meanwhile, the complainant stood up and stepped forward to them, upon which Zain Nawaz gave butt blow of his gun which hit at his right elbow and the injured fell down. Then Sher Khan made a fire with his gun at Sajid Mahmood which, hit on his head towards left side. The shots fired by Sanaullah and Zaib Nawaz missed. After that, the complainant brought his rifle 7-MM and in self-defence fired in the air.
3. The motive alleged was that a little while before the occurrence, Sajid Mahmood had gone to the dera of Sher Khan, slapped him and insulted, who bore a grudge and as a result of that grudge the accused committed murderous assault upon the complainant and Sajid Mahmood. The injured Sajid Mahmood was shifted to Civil Hospital, Jauharabad and then to General Hospital Lahore but he in his way to Lahore sccu mbed to his injury.
4. Investigation of the case was taken over by Ghulam Sarwar SI (PW.8). He after chalking of the FIR, went to Civil Hospital, Jauharabad, prepared injury statement Ex. PF, inquest report Ex. PG in respect of dead body of Sajid Mahmood, then inspected the site and took into possession the blood stained earth vide memo Ex. PM. Sanaullah accused was arrested on 8.7.2002. Sanaullah while in Police custody on 14.7.2002 led to the recovery of 30 bore pistol which was taken into possession vide memo Ex. PK. On the same day, Zaib Nawaz accused also led to the recovery of 12-bore pump action which was secured vide memo Ex.PC. Sher Khan accused was declared as Proclaimed offender.
5. At the trial, prosecution in order to prove its case, produced 8 witnesses in all. Then the learned DDA tendered in evidence-attested copies of report of Chemical Examiner (Ex.PO) and that of the Serologist (Ex. PP) and closed the case of the prosecution. Statements of the accused were recorded under Section 342 Cr.P.C. in which they pleaded false implication. After conclusion of the trial, the appellant was convicted and sentenced as stated above.
6. Learned counsel for appellant Sanaullah submits that FIR was recorded after preliminary investigation and consultation. Further submits that main accused Sher Khan who is real brother of the appellant is still at large. Adds that appellant though was alleged to be armed with a pistol but only role of ineffective firing was attributed to him. Adds that both the eyewitnesses namely Khalas Khan and Ghulam Muhammad are father and real maternal uncle of the deceased and were not resident of the dera where the occurrence had taken place. Further adds that no crime empties were taken into possession from the spot, the eye-witnesses have not signed any document prepared at the spot and even in the memos prepared by the Police, the names of the accused do not find mention and that in the investigation conducted by Crimes Branch, the appellant was found to be innocent.
7. Learned counsel for the complainant who has also filed Cr. Revision 'No. 434 of 2003 submits that the appellant was named in the FIR lodged by Khalas Khan who was also injured, place of occurrence is residence of the complainant, the presence of the appellant is admitted, no defence evidence was produced and even the appellant did not appear under 'Section 340(2) Gr.P.C. to rebut the case of the prosecution and that a pistol was recovered on the pointation of the appellant. Further submits that the appellant had direct motive against the deceased because his real brother Sher Khan (PO) was insulted by the deceased, prior to the occurrence. According to the learned counsel, it is a case of common intention of the accused who armed with fire arms came at the spot and committed the murder of the deceased. He has relied on PLD 1983 S.C. 35 and 1987 P.Cr.L.J. 1958.
8. Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.
9.I have heard learned counsel for the parties and have gone through the evidence on record. All the three accused mentioned in the FIR namely Sher Khan, Zaib Nawaz and Sanaullah, the present appellant are real brother inter se. Sher Khan is still at large. The motive behind the occurrence as alleged was that a little while prior to the instant occurrence, Sajid Mahmood, the deceased had gone to the dera of Sher Khan and slapped him as also insulted him. Due to this grudge, Sher Khan and his brothers assaulted upon the complainant party. This clearly shows that the motive, if any, was with Sher Khan who caused fatal injury on the person of Sajid Mahmood, deceased and is still at large. According to case of the prosecution, Sana Ullah appellant while armed with pistol came at the spot but fired in the air. Had Sanaullah common intention with his co-accused, he should have fired at the deceased who insulted his brother Sher Khan and not in the air.
It was also case of the prosecution that Zaib Nawaz, co-accused and Sanaullah, appellant also fired at the deceased but missed. According to complainant, he also fired in the air in his defence.
The occurrence was I shown to have taken place in the baithak of the complainant. The site-plan prepared by the Patwari shows that there is no mark of bullet on any of the wall as well as the roof.
No crime empty was taken into possession from the spot. Mere recovery on the pointation of the appellant is no help to the prosecution.
In the investigation carried out by Crimes Branch, the appellant was found to be innocent. There is no denying the fact that opinion of the Police is not binding upon the Courts but in the facts of the instant case, when Sher Khan co-accused of the appellant to whom fatal injury on the person of the deceased was attributed, is real brother of the appellant and is still at large and only fired in the air, it gains some importance.
Both the eye-witnesses namely Khalas Khan and Ghulam Muhammad are real father and maternal uncle of the deceased Sajid, The baithak where the occurrence took place in surrounded by many houses. None from the adjacent houses was produced by the prosecution. In a case of capital, charge, the Court has to see the quality and not the quantity of evidence and corroboration from independent source. In the instant case, except the oral testimony of two eye- witnesses, there is no corroboration in the shape of motive, medical evidence and the recovery.
For what has been discussed above, I am of the considered opinion that the prosecution has not been successful in proving its case against the appellant rather the defence has been able to create dents in the story of the prosecution specially when the role ascribed to the appellant is that of ineffective firing. Resultantly, by extending the benefit of doubt, I accept the appeal filed by convict appellant, set aside the conviction and sentence recorded against him by the learned trial Court and acquit him of the charge. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
Criminal Revision No, 434 of 2003 filed by the complainant is dismissed.
Before parting with this judgment, I may observe that the occurrence had taken place on .21.6.2000.
Sher Khan, the main accused to whom fatal shot on the person of the deceased is attributed is still at large. The DIG, Sargodha is directed to take special steps and measures for the arrest of the accused. It has been submitted by learned counsel for the complainant that relatives of Sher Khan PO are in Police department and they are providing shelter to him. Be that as it may, the law will take its own course.
Any observation made in this judgment would not prejudice the case of either party as far as Sher Khan, PO is concerned.