' This judgment will dispose of Criminal Appeal No,2056 of 2002 filed by Abdul Ghafoor alias Goora appellant who was convicted under section 324, P.P.C. And was sentenced to 10 years' R.I. And to pay a fine of Rs,10,000, or in default six months' S.I: by learned Additional Sessions Judge, Shakargarh vide judgment dated 26-11-2002 Criminal Appeal No,835 of 2004 filed Abdul Ghaffar complainant against the acquittal of Shahid Ali alias Shada and 2 others and Criminal Revision No,448 of 2004 also filed by the complainant for enhancement of sentence of convict appellant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 24-2-1996 at 7-30 a.m., Abdul Ghaffar (complainant) along with his brother Abdul Sattar was going from his house to. Haveli and when reached near the house of Muhammad Hussain, Abdul Ghafoor armed with 8 mm rifle, Shahid and Tahir Mahmood armed with rifle .7 mm, Tariq and Khalid armed with rifles .222, emerged. Tariq accused raised Lalkara that the complainant party should not be spared. Upon this, all the accused resorted to indiscriminate firing. The shot fired by Abdul Ghafoor landed into abdomen of Abdul Sattar.
' The motive alleged was that one day prior to the occurrence at 8 p.m., the accused party assaulted the house of Muhammad Aslam. The complainant and his brother went to inquire about the matter and when they were coming back. Abdul Ghafoor threatened them of dire consequences.
3. Investigation of the case was taken over by Habib Ullah, A.S.-I. (P.W.7). He on receipt of information about the incident went to Civil Hospital, Shakargarh from where he learnt that the injured has 'been shifted to Lahore. Thereafter, he proceeded to the place of occurrence, took into possession the blood-stained earth vide memo. Exh.P.G. And on 10-4-1996, he received information about the death of Abdul Sattar, went to Lahore, brought the dead body to Civil Hospital, prepared inquest report Exh.P.J. And injury statement Exh.P.K. After completion of the investigation, all the four accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned S.P.P. Tendered in evidence report of the Serologist Exh.P.N. Report of the Chemical Examiner Exh.P.O.
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, except Abdul Ghafoor, convict appellant, all the remaining accused were acquitted.
5. Learned counsel for the appellant after having read the entire prosecution evidence submits that the appellant was declared innocent by the police, that no weapon of offence was recovered from the appellant, that on the same set of evidence three co-accused of the appellant have been acquitted by the learned trial Court while the present appellant has been convicted under section 324, P.P.C. And acquitted from the charge under section 302, P.P.C. Learned counsel for the appellant submits that if an accused person is acquitted in the main offence then he cannot be convicted in an attempt for the same. He further submits that due to medical complications deceased met to his death. Adds that the deceased remained 47 days in the Hospital but no statement of the deceased was recorded either under section 164, Cr.P.C. By the learned Magistrate or under section 161, Cr.P.C. By the police. Learned counsel submits that it has not come on the record that the deceased was unconscious during his admission in the hospital. Learned counsel submits that the prosecution as failed to determine the kind of weapon and nature of the injury. He submits that Abdul Ghaffar P.W.6 the complainant is the real brother of the deceased while Muhammad Shafique P.W.7 is from the brotherhood of the complainant, that they were not injured so their presence at the spot is doubtful, that the story given in the F.I.R. Is unplausible and improbable and that statements of both the eye-witnesses have contradicted with each other. He submits that the prosecution has failed to prove the motive. He submits that Muhammad Aslam P.W.5 between whom and the accused and altercation had taken place a day before the occurrence did not state a single word about the occurrence before the learned trial Court.
6. On the other hand learned counsel assisted by the learned counsel for the complainant who has filed a revision petition and criminal appeal against the acquittal of the co-accused of the appellant, submit that ocular account is corroborated by the medical evidence, that there were independent witnesses in this case and it was a broad-daylight occurrence. Learned counsel further submits that there is no question of substitution in the instant case. Learned counsel submits that duration given by the doctor is within six hours after examining the injury at 8-45 a.m.
On 24-2-1996 fits in with the time of occurrence. They submit that motive has been fully proved through statement of Abdul Ghaffar complainant. They both support the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties at a great length and also have gone through the record available on the file. In the instant case the complainant has filed a Criminal Revision No,448 of 2004 titled as Abdul Ghaffar v. Abdul Ghafoor which is not maintainable for the reason that appellant has been awarded maximum sentence under section 324, P.P.C. Even the prayer made in this revision petition is also not maintainable because this Court cannot award death sentence to an accused who has been awarded 10 years' R.I. Under section 324, P.P.C. So this revision petition is dismissed.
7-A. The complainant has also filed a Criminal Appeal No,835 of 2004 against the three acquitted accused/respondents namely Shahid Ali alias Shada, Tariq Mahmood and Tahir Mahmood. I have gone through the judgment impugned through this appeal. No injury is attributed to any of the respondent. There is only one injury on the person of the deceased which was attributed to Abdul Ghafoor appellant in Criminal Appeal No,2056 of 2002 so the reasons given by the learned trial Court for their acquittal are cogent and legal one. This appeal is dismissed. No appeal against the acquittal of the appellant Abdul Ghafoor in Criminal Appeal No,2056 of 2002 was filed either by the complainant or by the State Counsel against his acquittal in section 302, P.P.C.
8. Now I take up the case of Abdul Ghafoor appellant first of all I will take up the motive part of the instant case. The motive behind the present occurrence was that a day prior to the present occurrence the appellant and his acquitted co-accused namely Shahid Ali, Tariq Mahmood and Tahir Mahmood assaulted the house of Muhammad Aslam P.W. The complainant and his brother went to the house of said Muhammad Aslam in order to inquire about the incident and when they were coming back Abdul Ghafoor alias Goora had threatened them of dire consequences. The said Muhammad Aslam had appeared before the learned trial Court as P.W.5 but he did not utter a single word whatsoever about the motive. He only stated about the identification of the dead body at the time of post-mortem examination. He could have been the best witness to prove the motive, so the motive in this case is disbelieved.
9. Now I take up the story mentioned in the F.I.R. According to the complainant who is real brother of the deceased, took the injured (deceased) to Civil Hospital where the Doctor Rafique Ahmad P.W.4 medically examined the deceased vide report Exh.P.C. The relevant column for relative and friend reveals that in fact Allah Ditta L.F.C. No,85 took the injured to the hospital for medical examination.
This documentary evidence is totally conflicted with the narration made by the complainant in the F.I.R. That he took the injured to the hospital and after getting him medically examined and getting M.L.R. He met Habib Ullah A.S.-I. And got recorded the complaint which is Exh.P.E. Had the complainant or other eye-witness Muhammad Shafique been present at the spot and the complainant had taken the injured to the Hospital for medical examination his name must have been mentioned in the relevant column of relative and friend. The doctor who medically examined the injured Abdul Sattar at 8-45 a.m. On 24-2-1996 did not give the kind of weapon used on the person of the injured. Even the doctor who conducted the post-mortem examination namely Muhammad Asif Khan while appearing as P.W.8 did not give or specify any weapon of offence for murder of the deceased. Till today, except the oral testimony, it has not come on record that with which weapon the deceased was injured. The doctor had given the duration of injury within six hours. Both the learned counsel for the complainant and the State had insisted that it means that murder had taken place at 7 a.m. The duration of six hours according to my opinion can be taken to 2, 3, 4, 5 and 6 a.m. On 24-2-1996. It was cold winter season because on those days the sun used to rise at 6-30 a.m. And the place of occurrence is Tehsil Shakargarh which is adjacent to Jammun Kashmir border. This all casts doubt on the presence of the eye-witnesses at the spot. During the course of investigation no weapon was recovered from the appellant. It was also the case of the prosecution that indiscriminate firing was made by 5 accused persons who were armed with .7 mm, .8 mm and .222 bore rifle but not a single crime-empty was ever taken into possession by the police from the spot. There was only one injury on the person of the injured. If, as alleged by the two eye-witnesies in their statements recorded under 161, Cr.P.C. The fire-arm was used then the doctor who conducted the medico-legal report and later on when he was shifted to Mayo Hospital and operation was also conducted on him a piece of led bullet from his abdomen should have been recovered by the doctor. Even there is no exit wound of this injury. I have also gone through the report under section 173, Cr.P.C. Which shows that name of the appellant along with Tariq Mahmood and Tahir Mahmood has also been mentioned in Column No,2 of the challan. Although opinion of the police is not binding on the Court but in the peculiar circumstances which I have mentioned above, it becomes relevant in the instant case. The doctor who conducted the post mortem examination has also stated that the weapon of offence should have been mentioned by the doctor who had medically examined the injured on the day of occurrence. Abdul Ghaffar complainant is the real brother of the deceased Abdul Sattar while Muhammad Shafique P.W.7 is from their brotherhood. They all are Gujjar by caste. Even the motive has not been furnished by this Muhammad Shafique and the same has only been given by Abdul Ghaffar complainant the real brother of the deceased.As I had mentioned above the best witness for the motive could have been Muhammad Aslant P.W.5 but he has not stated anything in this regard.
10. It has been stressed by both the leaned counsel for the State and the complainant that there was no reason of false implication of the present appellant in the instant case. I may state here that when the prosecution once fails to prove its case against the accused beyond any shadow of doubt then the presence of the enmity between the parties does not mean that the accused cannot be acquitted.. Except the oral testimony of these two eye-witnesses about whom I am of the opinion that they were not present at the spot and there is no corroboration whatsoever from any source on the record against the appellant.
11. After having heard the learned counsel for the parties and going through the record, I am of the view that prosecution has failed to prove its case against the appellant, so while granting benefit E.
Of doubt, I accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court. He shall be released forthwith if he is not required in any other case. The criminal revision and the appeal filed against the acquittal of co-accused of the appellant are dismissed.