' The way in which the instant appeal arises is this. Dilbar Hussain alias Dillu son of Muhammad Ramzan, Wakeel Ahmad alias Aqeel Ahmad son of Muhammad Hanif and Muhammad Irfan son of Muhammad Yasin, appellants, along with Abdul Aziz son of Abdul Qadir, Muhammad Anwar son of Ali Muhammad, Caste Chohan, Muhammad Sarwar son of Ali Muhammad, Caste Randhawa and Hamayun Waqas son of Muhammad Sarwar (Proclaimed Offender) were tried by a learned Additional Sessions Judge at Sheikhupura for the murder of Mst. Parveen Akhtar and murderous assault upon Mst. Haleeman Bibi. The learned trial Judge, by virtue of his judgment, dated 7-5-2002 found the appellants guilty of the said charge, convicted and sentenced them as under:--
(I) Under section 302/34, P.P.C.: All the three appellants to undergo imprisonment for life each with further direction to pay a sum of Rs.1,00,000 each to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C.
(II) Under section 324, P.P.C.: ' Dilbar Hussain-appellant to undergo rigorous imprisonment for ten years for committing murderous assault upon Mst. Haleeman Bibi, injured P.W, with a fine of Rs.10,000 or in default thereof to further undergo simple imprisonment for two months, whereas Wakeel Ahmad alias Aqeel Ahmad and Muhammad Irfanappellants to undergo rigorous imprisonment for five years each with a fine of Rs.5,000 each or in default thereof to further suffer simple imprisonment for one month each.
(III) Under section 337-F(iii), P.P.C.: ' Dilbar Hussain to undergo rigorous imprisonment for three years as Ta'zir for causing injuries to Mst. Haleeman Bibi with further direction to pay Daman amount of Rs.10,000 to the injured P.W.
' All the sentences were ordered to run concurrently. Benefit of section 382(b), Cr.P.C. Was, however, accorded to them.
' The learned trial Judge by giving the benefit of doubt to Abdul Aziz, Muhammad Anwar and Muhammad Sarwar, acquitted them of the said charge. Hamayun Waqas-accused was declared a proclaimed offender and was ordered to be tried after his arrest.
2. The convicts-appellants by filing the instant appeal have called in question convictions and sentences passed against them by the said learned Judge.
3. Occurrence of the alleged incident had taken place on 25-10-2001 at 4-30 p.m. In the revenue estate of village Jatri, situate at a distance of seven miles from Police Station, Saddar Farooqabad, Sheikhupura. The matter stood reported by Rashid Ahmad-complainant to Asad Muzaffar, Inspector/S.H.O. (P.W.17) at village Jatri Kohna at 5-55 p.m. On the same day, who on receipt of information regarding occurrence reached the spot and reduced into writing complaint (Exh.PJ/1) as per dictation of the complainant. It was dispatched to the police station through a constable for formal registration of a case. On receipt thereof, Abdul Sattar, M.H.C. (P.W.8) drew up formal F.I.R.
(Exh. PJ) on the same day at 6-30 p.m. Without any addition or substraction on his part.
4. Rashid Ahmad-complainant puts the matter succinctly by stating in the F.I.R. (Exh.PJ) that he is a peasant. On the day of occurrence, i.e. 25-1-2001, he along with Muhammad Ashraf son of Fazal Elahi went to pursue crime report No.271, under section 324, P.P.C. In the High Court. He along with Muhammad Ashraf reached near his house at 4-30 p.m. After being free from the High Court.
Muhammad Aslam was available at the platform of his drawing room. He drew his attention by saying that take care and save yourself'. He took towards North and found Hamayun Waqas, Muhammad Sarwar, Muhammad Irfan, Wakeel Ahmad, armed with rifles and Dilbar Hussain, carrying a .12 bore gun, standing in the Bazaar. No sooner did they see him, than Muhammad Sarwar exhorted a proverbial Lalkara to the effect that today Rashid Ahmad should not be permitted to go alive and indulged into firing. The complainant ran and saved his life. He effected his entry into his house, whereas the accused climbed over rooftops of houses of Liaqat and Wakeel Ahmad. They indulged into firing at his house. His sister, Mst. Parveen Akhtar, wife of Muhammad Hanif, was available in the courtyard of the house. Hamayun Waqas made a shot at her, which struck her right thorax region. The bullet made its exit from her back. On receipt of injury, she fell prone. Mst. Haleeman wife of Muhammad Iqbal, his niece, proceeded to attend her. She was also fired at by Dilbar Hussain through his gun-shot made by him struck her belly. She too fell down. The accused indulged into reckless firing, which produced scar marks on main gate and walls. His co-villagers gathered at the spot. They beseeched the accused. Thereafter, they decamped from the spot while still firing aimlessly. Mst. Parveen Akhtar succumbed to her injuries spontaneously at the spot. Mst. Haleeman Bibi was sent to Civil Hospital, Sheikhupura for treatment and management of her injuries.
' Motive behind this occurrence was enmity because of different cases. Accused committed this crime at the instance of two persons, namely, Abdul Aziz and Muhammad Anwar. Besides the complainant, incident was also viewed by Muhammad Ashraf and Muhammad Aslam P. Ws. Asad Muzaffar, Inspector/S.H.O. (P.W.17) along with a heavy contingent of police officials on receipt of information of the occurrence reached the spot by means of an official vehicle, where the complainant established contact with him and narrated the story of incident, which culminated into death of Mst. Parveen Akhtar and injuries on the person of Mst. Haleeman P.W. That is how, he set the police machinery into motion by getting the aforementioned case registered against the alleged wrong doers.
5. Succeeding registration of case, Asad Muzaffar, Inspector/S. H. O. (P. W .17) took over the uphill task of investigation. He immediately proceeded to the venue of occurrence, inspected the same, collected seventeen crime empties of .12-bore gun (P9/1-17), and five empties of 7-MM (P10/1-5) therefrom and took the same into possession through memo. Exh. PO. Four empties of .7-MM rifle (P11/1-4) were also collected from rooftop of the house from where the accused fired at the complainant side. A seizure memo. (Exh. PQ) in this regard was prepared. He also collected blood- stained soil from the spot, made it into a sealed parcel and took the same into possession through memo. Exh.PP. All these recovery memos were duly attested by Muhammad Ashraf (P.W.18) and Muhammad Aslam P.W. (not produced). Then, the Investigating Officer inspected the dead body of Mst. Parveen Akhtar, prepared its injury statement (Exh.PF), inquest report (Exh. PE) and dispatched the same to the mortuary for autopsy purposes under the escort of Muhammad Younas, Constable (P.W.2). He also prepared rough site-plan of the place of occurrence (Exh.PR), Sadaqat Farooq, A.S.- I. Produced before him Medico-Legal Report of Mst. Haleeman Bibi (Exh. PH). After being arrested, the accused were subjected to necessary interrogation by the Investigating Officer, during course of which, Muhammad Wan and Wakeel Ahmad alias Aqeel Ahmad-appellants got recovered rifles .7-MM (P5 and P6) from their residential houses, which were taken into possession through memos.
Exhs. PB and PC, duly attested by Ghulam Sarwar, Constable (P.W.5) and Abdul Junaid, A.S.-I.
(P.W.6), respectively. Dilbar Hussain-appellant produced before the Investigating Officer a pump action gun (P7) along with 30 cartridges (P8/1-30) at the time of his arrest, which were taken into possession through memo. Exh.PL. He also got recovered rifle 44-bore (P9) along with 47 bullets (P10/1-47) from his house. Seizure memo. Exh.PM in lieu thereof was prepared. These recovery memos. Were duly attested by Muhammad Ali (P.W.12) and Riaz Ahmad P.W. (not produced). After necessary legal formalities, Hamayun Waqas-accused was got declared as a proclaimed offender by him. He got prepared site-plan of the place of occurrence in duplicate (Exhs. PK and PK/1) from Muhammad Riaz, Draftsman (P.W.11). He recorded statements of the relevant witnesses under section 161, Cr.P.C. And handed over the case property to the Muharrir of the police station for keeping the same into safe custody and onward transmission to the relevant quarters for analysis purpose. He prepared incomplete challan against the accused and put up the same before the trial Court for their trial in accordance with law.
6. The learned trial Judge carefully examined the relevant record and found it fit for holding the desired trial. After fulfilling all the legal formalities, charge was framed and put to the accused, to which they pleaded not guilty and claimed to be tried.
7. Now the only option with the trial Court was to proceed with the trial and nothing short of it. The prosecution was invited to adduce the best possible evidence available at its end, to bring home guilt to the under trials. In order to achieve noble object of proving charge against the accused, prosecution ventured to produce as many as eighteen witnesses in all. I would like to make a brief reference to the statements of relevant witnesses, which would enable me to analyse the same.
' Out of the whole lot, evidence of Ghulam Sarwar, constable (P.W.5), Abdul Junaid, A.S.-I. (P.W.6), Lady Doctor Fauqia Asif Khan (P.W.7), Muhammad Amin (P.W.9), Farzand Ali (P.W.10), Muhammad Ali (P.W.12), Rashid Ahmadcomplainant (P.W.14), Mst. Haleeman Bibi (P.W.15), Asad Muzaffar, Inspector/ S.H.O. (P. W.17) and Muhammad Ashraf (P.W.18) is of great significance.
' Ghulam Sarwar, constable (P.W.5) and Abdul Junaid, A.S.-I. (P.W.6) appeared to testify to the factum of recovery of rifles (P5 & P6) at the instance of Muhammad Irfan and Wakeel Ahmadappellants. Lady Doctor Fauqia Asif Khan (P.W.7) conducted autopsy on dead body of Mst.
Parveen Akhtar deceased and observed one fire-arm injury on her person. According to her, she died due to shock and haemorrhage resulting from said injury, which was sufficient to cause death in the ordinary course of nature. Muhammad Amin and Farzand Ali (P.Ws. 10 and 11) are witnesses of abetment. They overheard conversation between Muhammad Anwar, Muhammad Sarwar, Abdul Aziz and Ashfaq. Rashid Ahmad-complainant (P.W.14), Mst. Haleeman Bibi (P.W.15) and Muhammad Ashraf (P.W.18) are eyewitnesses of the occurrence. They devoted their attention to narrate all the relevant facts pertaining to the occurrence, which were either observed by them or came to their knowledge. Asad Muzaffar, Inspector/S.H.O. (P.W .17) is Investigating Officer of the case. He stated about duties performed and acts done by him during course of investigation.
' Evidence of remaining witnesses is almost of a formal nature, which shall be brought under discussion, if need be.
8. Learned prosecutor gave up the remaining witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner (Exhs. PS and PT), Serologist (Exh.PU) and Forensic Science Laboratory (Exh.PV) declared the prosecution case close.
9. Trial had now shifted to the next crucial stage, which pertained to examination of accused under section 342, Cr.P.C. All the incriminating evidence was brought to their notice to enable them to understand it and to offer handsome explanation with regard to the crime imputed to them. They proclaimed their absolute innocence in the matter and alleged their false involvement in the case due to animosity. They opted not to make statements on oath in disproof of accusations brought against them as envisaged by the relevant provisions of section 340(2), Cr.P.C. They did not produce evidence in defence.
10. The learned trial Judge after considering facts and circumstances revolving around this matter delivered verdict of guilt against the appellants and punished them as aforementioned.
11. Mr. S.K. Chaudhry, learned counsel for Dilbar Hussain-appellant in his attractive arguments to this Court submits that the injury borne by Mst. Haleeman. Bibi is not of serious nature. Furthermore, non-identified her before the examining doctor. X-rays film was also not produced at the trial and this injury could possibly be caused when the assailants and the assaultee were almost at the same level. Adds that too many houses and an Acacia Arabica tree exist in between the assailants and the assaultees and they could not see the assailants at the time of occurrence. Adds that the exact position of the appellant has not been indicated in the site-plan and that the occult evidence is not supported by the medical evidence. Lastly he submits that the evidence in its entirety was not appreciated by the learned trial Judge, which needs reappraisal. He places reliance on the cases, Muhammad Abbas and others v. The State (2000 PCr.LJ 1423) and The State through Advocate-General, N.-W.F.P., Peshawar v. Tawab and another (2002 PCr.LJ 377).
' Malik Saeed Hassan, learned counsel for Wakeel Ahmad alias Aqeel Ahmad and Muhammad Irfan-appellants while praying their acquittal puts the matter like this: He submits that the appellants stood implicated in the case because of animosity existing between the two sides.
Rashid Ahmad-complainant (P.W.14) during course of cross-examination admits of this fact. Had the appellants been available at the spot during course of incident, they would not have spared the complainant. Adds that the shots allegedly made by them hit house of the complainant, but strangely enough no scar marks have been shown or indicated in the site-plans either by the Investigating Officer or by the Draftsman. Last of all, he points that rifles recovered from the appellants and empties secured from the spot during spot inspection were dispatched to the office of Forensic Science Laboratory for comparison purpose and the report is in the negative and that case of the appellants is at par with that of his co-accused Muhammad Sarwar, who has been acquitted of the charge. This aspect of the matter is covered by the authority of a decided case, Tanvir Ahmad and another v. The State (1996 SCM R 1549).
12. Learned counsel for the State assisted by learned counsel for the complainant vehemently argues that it is a case of promptly lodged F.I.R. And that both the sides were fully known to each other, so there was not the least possibility of mistaken identity. They submit that as the appellants resorted to hell of firing, so lot many scars were noticed by the Investigating Officer and draftsman on different portions of house of the complainant regarding which a reference has been made in the site-plan. They also submit that Dilbar Hussain and Muhammad Irfan became fugitive from law and remained absconders for 8 and four months, respectively. They further submit that presence of Mst. Haleeman Bibi (P.W.15) at the spot during occurrence cannot be doubted as she sustained an injury during the occurrence and that the prosecution witnesses were well in a position to have a full view of the activities of the accused. They end their arguments by submitting that all the points urged by them are covered by the authority of decided case, Javed Ahmad (Jawad) and 3 others v. The State (2002 SCM R 614).
13. I have with much care and devotion heard and considered arguments addressed at the bar. I have also perused the record with the able assistance of learned counsel for both the sides.
' I strove very hard to ascertain truth behind this matter. Truth or falsehood in a case can be discovered from the evidence, as evidence is the basis of justice. While surveying facts and circumstances of the case, I find that the occurrence of the alleged incident took place on 25-1- 2001 at about 4-30 p.m. In the area of village Jatri Kohna, situate at a distance of seven miles from Police Station Saddar Farooqabad, District Sheikhupura. Complainant or the witnesses did not go to the police station to make a report of the occurrence. They stayed at the spot. Complaint (Exh.PJ/1) was recorded by Asad Muzaffar, Inspector/ S.H.O. (P.W.17) at the spot at 5-55 p.m. After about eighty-five minutes of the occurrence. Complainant did not disclose in his statement as to why he failed to approach the police at the police station and preferred staying back at the spot for a considerable period. The only inference, which can be drawn from this circumstance, is that the complainant and the witnesses wanted to indulge into deliberations and consultations with each other to build up a story of their own choice. Acquittal of Abdul Aziz, Muhammad Anwar and Muhammad Sarwar-accused clearly depicts that few innocent persons were introduced as accused in the F.I.R. Abdul Aziz and Muhammad Anwar were charged for abetting their co- accused. This allegation was found to be utterly false. Participation of Abdul Aziz, Muhammad Anwar and Muhammad Sarwar was doubtful and as such were acquitted by extending them the benefit of doubt. This circumstance undoubtedly has shaken the very foundation of prosecution version.
14. Evidence in this case shall have to be scrutinized and weighed in the scales of justice consciously. First part of the prosecution story relates to the occurrence, which took place in the Bazaar. It is a thickly-populated area. All the accused except Abdul Aziz and Muhammad Anwar, who were not available at the spot, were already available there while carrying weapons and finding the complainant resorted to hell of firing. No empties could be secured by the Investigating Officer from the Bazaar. No signs or symptoms of firing could be traced out by the police. Bullets or pellets after leaving muzzles of weapons were bound to strike the objects falling in their way. No bullet marks could be observed by the Investigating Officer on houses or some other objects in the Bazaar. It is a thoroughfare. None received injuries. None put up appearance before the Investigating Officer to corroborate statement of the complainant. The whole quantum of my analysis reveals that this part of the story was wholly untrue being not supported by evidence.
Proving or non-proving always rests on evidence. When no evidence is collected regarding a fact, it would be deemed to have not been proved.
15. Next important thing is that Muhammad Ashraf (P.W.18) is maternal cousin of the complainant.
Mst. Haleeman Bibi (P. W.15) is his niece. All the prosecution witnesses cited or produced at the trial are relatives. They were on frequent visiting terms with each other. Avowed animosity was existing in between. The relevant individuals and this fact is very well-admitted by the complainant in his cross-examination.
16. Wakeel Ahmad alias Aqeel Ahmad, Muhammad Irfan-appellants and Muhammad Sarwar (since acquitted) were assigned exactly the same role. Muhammad Sarwar was found innocent and earned acquittal. Rifles recovered from Wakeel Ahmad and Muhammad Irfan-appellant were not found wedded with the empties as per report of Forensic Science Laboratory (Exh. PV).
17. Another bothering circumstance is that all the accused were standing in the Bazaar out of an elaborate planning to kill Rashid Ahmad-complainant. He was the target available at the threshold of the accused. They were five in number well-equipped with arms and ammunition. Firing done by them at Rashid Ahmad would not have remained ineffective. Then he rushed to his house. Why the accused did not give him a chase to accomplish their ignoble design. This question remains unanswered. Complainant has admitted in his cross-examination that "Aqeel alias Keeli and Iqbal alias Bali participated in the firing, who were not named in the F.I.R." This also reflects that this F.I.R. Is result of a good deal of counselling at the spot. If the complainant alleges false facts in the first information report or thereafter or suppresses material facts, then it would adversely affect his testimony. The complainant has suppressed lot many material facts in his statement.
18.
19. #TBS
20. E
21. F
22. #TBE
23. In my judgment, upon consideration of all material facts, participation of Wakeel Ahmad alias Aqeel Ahmad and Muhammad Irfan-appellants is somewhat doubtful. Accordingly, by extending the benefit of doubt to them, I hereby order their acquittal of the charge. They are on bail and stand discharged of their bail bonds. This appeal to their extent is allowed.
24. As regards Dilbar Hussain-appellant, shot made by him struck Mst. Haleeman Bibi (P.W.15) at her abdoininal region. She was examined by Lady Doctor Faugia. Asif Khan (P.W.7), who found following injury on her person:-- "(1) Fire-arm wound of entrance 1 c.m. x 1 c.m. On left iliac fossa."
' Duration of the injury tallies with the time of occurrence. This injury could not be self-suffered or caused by a friendly hand. She has definitely accused Dilbar Hussain of having caused this injury on her person. She had absolutely no earthly reason at her end to furnish false voucher against him. His name is mentioned in the F.I.R. Ideally specific role attributed to him by the witnesses is in consonance with the medical evidence.
20. The objection of learned counsel for the appellant that Mst. Haleeman Bibi was not identified before the doctor by any one. In my view, this is a wholly fallacious argument, because the lady doctor had noted down her two identification marks in the Medico-Legal report, which read as under:-- "(1) Mole on right side of face. (2) Mole on right cheek."
During trial none came out with this version that she did not sustain injury and was not examined by the lady doctor. He has rightly been adjudged guilty. I have no reasons to differ with the meritorious conclusions arrived at by the learned trial Judge qua guilt of Dilbar Hussain. This appeal qua him is dismissed being meritless.