' MUHAMMAD FARRUKH MAHMUD, J.---Master Nazeer Ahmad, Muhammad Younas, Shaukat Ali son of Barkat Ali, Muhammad Boota, Shafaqat Ali alias Shaukat Ali., Abdul Rauf, Shaukat Ali son of Muhammad Hussain and Abdul Ghaffar were booked in case F.I.R. No,590 of 2001 registered at Police Station, Saddar Rahim Yar Khan for offences under sections 302/324/337-F(v)/148/149, P.P.C.
For causing murder of Mst. Bashiran and injuries to Muhammad Hafeez, complainant/P.W.1 and Liaqat Ali/P.W.3, Abdul Ghaffar, accused absconded and was declared proclaimed offender, while rest of the accused were sent up to face trial.
2. Vide judgment dated 26-1-2004, Mr. Muhammad Rashid Qamar, learned Additional Sessions Judge, Rahim Yar Khan, while acquitting co-accused Muhammad Boota, Shafaqat Ali son of Abdul Ghaffar and Abdul Rauf convicted and sentenced Master Nazeer Ahmad, Muhammad Younas, Shaukat Ali son of Barkat Ali and Shaukat Ali son of Muhammad Hussain, appellants as under:--
(a) Master Nazeer Ahmad
(i) For offence under section 302(b), P.P.C. To imprisonment for life plus payment of compensation of Rupees fifty thousands to legal heirs of the deceased, in default whereof to further undergo R.I.
For six months; and
(ii) For offence under section 324, P.P.C. For causing injuries to Muhammad Hafeez, P.W.1, to undergo R.I. For ten years.
' Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was given to the convict.
(b) Shaukat Ali son of Barkat Ali
(i) For offence under section 302 (c), P.P.C. To imprisonment for life plus payment of compensation of Rupees Fifty Thousands to the legal heirs of the deceased and in default thereof to further suffer R.I. For six months; and
(ii) For offence under section 324, P.P.C. To undergo R.I. For ten years for causing injuries to Muhammad Hafeez/P.W.1.
Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to the convict.
(c) Muhammad Younas son of Nawab Din For offence under section 324, P.P.C. To undergo R.I. For five years for causing injuries to Muhammad Hafeez/P.W.1.
(d) Shaukat Ali son of Muhammad Hussain For offence under section 324, P.P.C. To suffer R.I. For five years for causing injuries to Muhammad Hafeez/P .W.
1.
3. Aggrieved by their above said convictions and sentences, Master Nazeer Ahmad, Muhammad Younas and Shaukat Ali son of Muhammad Hussain have brought Criminal Appeal No,40 of 2004, while Shaukat Ali son of Barkat Ali has filed Criminal Appeal No,70 of 2004, whereas Muhammad Hafeez/ complainant has preferred Criminal Appeal No,20 of 2004 against the aforesaid convicts/appellants for enhancement of their sentence. I propose to decide all these matters through this consolidated judgment.
4. Muhammad Hafeez, complainant, had also filed Criminal Appeal, No,60 of 2004 against the acquitted co-accused, which was dismissed as having been withdrawn vide order dated 11-3-2004 and is no more in the field.
5. Habib-ur-Rehman, S.-I./P.W.18 along with Zaheer Ahmad and Muhammad Arshad, Constables reached Civil Hospital, Rahim Yar Khan, at 11-20 a.m. After receiving information of the incident.
There, he recorded statement Exh.P.A. Of Muhammad Hafeez, P.W.1. On the basis of the above noted statement Muhammad Draz, A.S.-I./P.W.14 registered F.I.R. No,590, Exh.P.A./1 at Police Station Saddar, Rahim Yar Khan. On the same date at 11-40 p.m. For offences under sections 324/148/149, P.P.C. Mst.
Bashiran, who had received injuries during occurrence, died on 8-11-2001 and offence under section 302, P.P.C. Was added.
6. The occurrence took place near a Soling Road situated in Chak No,126/P, which was at a distance of 15 Kms from the Police Station. After recording statement of Muhammad Hafeez and sending the same to the Police Station for registration of case Habib-ur-Rehman, S.-I./P.W.18 proceeded to the place of occurrence and prepared rough site-plan Exh.P.L. He also recorded the statements of prosecution witnesses under section 161, Cr.P.C. However, neither he secured any blood-stained earth from the spot nor he could find any empty at the place of occurrence.
7. According to prosecution case, Muhammad Hafeez, P.W.1, lived in the eastern side of Chak No,126/P. Master Nazeer Ahmad and Muhammad Younas also lived in the same Chak. One plot owned by the complainant was lying vacant on the western side of the Solling Road. Plot was in front of the houses of the above noted accused. On the fateful day at 6-30 a.m. Shafaqat Ali, P.W.2 (step-son of the complainant) went to the house of Ch. Manzoor Ahmad, Lambardar. After some time, the complainant heard alarm raised by Shafaqat Ali, thus, he along with his wife Mst.
Bashiran, deceased, Liaqat Ali, P.W.3 and Ahmad Ali, P.W.4 (step-sons of the complainant) reached the spot and saw that Master Nazeer Ahmad, Muhammad Younas, Abdul Ghaffar, Shaukat Ali son of Barkat Ali, Shaukat Ali son of Muhammad Hussain, Muhammad Boota son of Nawab Din, Shafaqat Ali son of Abdul Ghaffar and Abdul Rauf were throwing earth on both sides of the road with Kassies, while Abdul Ghaffar was lifting earth from the plot of complainant. When Shafaqat Ali stopped the accused from lifting earth, all the accused gave beating to him. The complainant party tried to rescue Shafaqat Ali, whereupon Master Nazeer Ahmad, Muhammad Younas, Shaukat Ali son of Muhammad Hussain, and Shaukat Ali son of Barkat Ali after extending threats to the complainant and his wife with dire consequences left to their houses and returned after equipping themselves with pistols. Master Nazeer Ahmad fired twice, which hit on the abdomen of Mst.
Bashiran at the same place. After receipt of injuries Mst. Bashiran fell on the ground. Thereafter Mst.
Bashiran's real son Shaukat Ali son of Barkat Ali caused fire at her which hit on buttock. Master Nazeer Ahmad also effectively fired at Muhammad Hafeez, complainant, which hit on the right side of abdomen. Muhammad Younas and Shaukat Ali son of Muhammad Hussain also fired at the complainant, which hit on the back of wrist joint of right hand of the complainant respectively. The fire caused by Shaukat Ali son of Barkat Ali hit on the left thumb of the complainant. The rest of the accused gave Sota blows on Shafaqat Ali, Liaqat Ali and Ahmad Ali. While the witnesses were approaching towards the scene of occurrence, the accused fled away from the spot along with their respective weapons.
8. Habib-ur-Rehman, S.-I./P.W.18, arrested Muhammad Younas on 28-10-2001. During investigation nothing was recovered from him and he was declared innocent. Shaukat Ali son of Barkat Ali appellant, who had received injuries and was examined on 27-10-2001 by the Medical Officer, was formally arrested on 17-11-2001 by P.W.18. On the same date, he led to the recovery of .30 bore pistol P.5 and its licence. The articles were taken into possession vide memo. Exh.P.K. Prepared by Habib- urRehman, S.-I. And attested by Qurban Hussain, P.W.16 and Mujahid Hussain, Constables. However, Master Nazeer Ahmad and Shaukat Ali son of Muhammad Hussain were not arrested by the police throughout, as according to findings of the Investigation Officers both of them were innocent. But both these appellants were summoned by the learned trial Court, after taking cognizance of the case.
9. In order to prove its case, the prosecution produced 19 witnesses in support of its case.
Muhammad Hafeez P.W.1 (husband of Mst. Bashiran, deceased), Shafaqat Ali, P.W.2, Liaqat Ali P.W.3 and Ahmad Ali P.W.4 sons of Mst. Bashiran, deceased from her earlier husband), furnished the ocular account. P.Ws.2, 3 and 4 are real brothers of Shaukat Ali son of Barkat Ali, appellant. The witnesses also stated about the motive behind the occurrence. Their statements are in accordance with story given in the F.I.R.
' Dr. Masood Jahangir P.W.8 stated that he had examined Muhammad Hafeez, P.W.1 on 27-10-2001 (date of occurrence) at 10-00 a.m. He observed four fire-arm injuries on the person of Muhammad Hafeez, which had been caused within five hours of the examination. Injury No,1 was on the abdomen, Injury No,2 was its exit wound, injury No,3 was on the base of left thumb, while injury No,4 was on the left wrist joint, which was an exit wound. On the same date and time, he also examined Liaqat Ali son of Barkat Ali, P.W.3 and observed three injuries on his person, which were caused by blunt weapon. Injury No,1 was on the head, Injury No,2 was on the left forearm, while Injury No,3 was on the left leg. After receipt of X-rays report Injury No,1 was declared Shujja Khafifah, Injury No,2 was declared Ghayr Jaifah Damiah, while Injury No,3 attracted the provisions of section 337-L(ii), P.P.C.
During cross-examination the Doctor admitted that on the same date Shaukat Ali son of Barkat Ali, appellant was produced before him by a constable for medical examination and he had examined him. He found eight injuries on the person of Shaukat Ali son of Barkat Ali, appellant. Injury No,1 was a lacerated wound on the right side of head. Injury No,2 was a lacerated wound on the medical side of right leg. Injury No,3 was a lacerated wound on the back of right leg. It was an exit wound of Injury No,2. Injuries Nos. 4, 5, 7 and 8 were caused by a blunt weapon and were on the right forearm, right shoulder, left forearm, right wrist joint and left leg respectively. During cross-examination (conducted by Mr. Muhammad Shahid Khan, Advocate) he stated that on query of police he had opined that the injuries on the person of Shaukat Ali were self-suffered. He explained that he expressed his opinion to the extent of injuries Nos.2 and 3 and had stated that possibility of there being self-suffered could not be ruled out. He further stated that there was blackening on Injury No,2, which was caused from a distance of about one foot. He further elaborated that he had expressed only about the possibility of this injury having been self-suffered and this being caused by inimical hand could not be ruled out. He admitted that he had given no such opinion when he examined Shaukat Ali son of Barkat Ali on 27-10-2001 and also gave no opinion of infliction of injury by friendly hands on 7-11-2001 on the query of police. His opinion is available on record as Exh.D.A.
' Dr. Saima Zulfiqar, P.W.13, firstly examined Mst. Bashiran, deceased on 27-10-2001 at 10-50 a.m., while she was being treated in Emergency Room. At the time of examination, her blood pressure was nil and pulse improbable. Surprisingly the learned trial Court did not ask the Doctor to place on record medico-legal report prepared on the date of occurrence and narrate the injuries. The Doctor only deposed about the details of post-mortem examination. However, the medico-legal report of initial examination of Mst. Bashiran is available on record as Exh.P.J. In the interest of justice it is necessary to reproduce the observations of the Doctor, below:-- "Lady is in semi-conscious stage and weak thready pulse, and hypotension.
(1) Lacerated wound of .5 x .5. c.m. On left buttock just in mid KUO.
(2) Two lacerated wounds of about .5 x .5 c.m. Just on right iliac fossa on right side of abdomen. .4 c.m. Apart KUO.
(3) Lacerated wound of .3 c.m. Below right anterior superior iliac supine.
' X-rays of all the injuries was advised."
' The Doctor, who perhaps was not well-versed as to how to prepare the medico-legal report and had not gone through any medical jurisprudence on that regard, as she did not mention the nature of injuries, weapon of offence used and the probable time elapsed between examination and receipt of injuries. She has also not mentioned the time of examination and also left columns, relating the number and date of police docket, date and time of admission in Hospital and date of discharge, blank. The Doctor conducted post-mortem examination on the dead body of Mst.
Bashiran on 8-11-2001. She observed (1) one healed wound of fire-arm injury of .5 x .5 c.m. On the left buttock just mid (corresponds to injury No,1 mentioned in medico-legal report Exh.P.J.), (2) lacerated wound in healing phase of .5 x .5 c.m. On right iliac fossa .5 c.m. From umbilicus (fire-arm exit wound and this wound was not described in Exh.P.J.), (3) lacerated wound of .5 x .5 c.m. In healing phase .3 c.m. Below right anterior superior iliac supine (fire-arm entry wound and corresponds to injury No,3 mentioned in Exh.P.J.), and (4) lacerated wound in healing phase of .5 x .5 c.m. On right iliac fossa .4 c.m. Below injury No,2 (fire-arm exit wound). According to her opinion, Mst. Bashiran lost her life due to fire-arm injuries within 13/14 days of its causation and post- mortem examination was conducted within 4/6 hours after her death.
' Rana Muhammad Ashraf, S.H.O./ P.W.9 stated that he partially investigated the case and except Shaukat Ali son of Barkat Ali rest of the accused were innocent. Akmal Rasool Nadir, Inspector/ P.W.10 submitted about the submission of supplementary Challan. Muhammad Nawaz, A.S.-I.
Stated about formal registration of the case. Qurban Hussain, Constable/P.W.16 stated about the recovery of pistol and licence at the instances of Shaukat Ali son of Barkat Ali, appellant.
' Habib-ur-Rehman, S. -I. /P . W . 18 stated about drafting of complaint Exh.P.A. And initial investigation of the case. He also stated about arrest of some of the accused and according to his opinion Muhammad Younas, accused was innocent. Tahir Masood, D.S.P./P.W.19 also stated about partial investigation of the case. According to his opinion, Muhammad Younas and Shaukat Ali son of Muhammad Hussain were found innocent, while rest of the accused involved in the case. During cross-examination he stated that it was only Shaukat Ali son of Barkat Ali, accused, who was armed with weapon and had opened attack. According to him, the other accused were present at the place of occurrence but they used bricks and sticks. The rest of the witnesses are formal in nature and need not be discussed.
10. In their statements recorded under section 342, Cr.P.C. The appellants claimed to be innocent.
Master Nazeer Ahmad, appellant in answer to Question No,10 stated that he was a retired teacher and that he had a background of politician and long standing politically based enmity existed between him and the complainant's family. He further stated that he and his family supported Peoples Party while the complainant and his family supported Muslim League. He further explained that Muhammad Younas and Shaukat Ali son of Muhammad Hussain, accused were his cousins while Abdul Rauf, accused was his son. Similarly Shafaqat Ali son of Abdul Ghaffar, accused and Muhammad Boota son of Nawab Din were also related to him. The first was his Bhanja while the latter was his cousin.
' Shaukat Ali son of Barkat Ali, appellant, who is real son of the deceased, gave detailed answer in reply to question No,12, which is defence plea and is being reproduced hereunder:-- "The complainant Muhammad Hafeez was keeping my mother Mst. Bashiran Bibi without Nikah and committing sexual intercourse "Zina" without Nikah. Mst. Bashiran Bibi was legally wedded wife of my father Barkat Ali. In this regard my father Barkat Ali was also got registered the case against Muhammad Hafeez complainant and Mst. Bashiran Bibi under section 16 of Zina Ordinance, 1979 vide F.I.R. No,657 of 1999. In this matter, I had taken the side of my father and not accepted the illegal act of Muhammad Hafeez complainant and my mother Mst. Bashiran Bibi due to this reason, the complainant Muhammad Hafeez .Made the life miserable of my father Barkat Ali and myself, because complainant is powerful and influential person, who has complete hold in Chak No,126/P and we are weak persons, we cannot face the complainant. The complainant party had to act in accordance with their own wishes in the Chak. If anybody does not accept the complainant version, he used to terrorize him. Prior to the occurrence, I was also abducted by the complainant etc. And tortured, whereafter case was also registered against them under section 342, P.P.C. Vide F.I.R. No,436 of 1999 due to this reason, the complainant involved me falsely in this case. In fact, the occurrence took place between complainant party and Master Nazeer Ahmad etc. I have no concern with the motive behind the occurrence and no relationship with other co-accused i.e, Master Nazir Ahmad etc. Complainant had joined the sons of Barkat Ali namely Shafaqat Ali, Liaqat Ali and Ahmad Ali with him, giving them greed of land, so P.Ws. Are inimical with me. They made poppet in the hand of the complainant."
' The crux of his defence plea is that he was not present at the time of occurrence and was roped in this case due to existing enmity over marriage of his mother of Mst. Bashiran with Muhammad Hafeez, complainant despite the fact that Mst. .3ashiran was not divorced by his father Barkat Ali and that Muhammad Hafeez, complainant was real nephew (Bhanja) of Barkat Ali, his father.
' None of the accused, appeared as witness in their defence under section 340(2), Cr.P.C. However, they produced 12 witnesses in their defence during trial. Syed Nazir Hussain Shah, D.S.P.1D.W.4, Muhammad Iqbal; Inspector Range Crimes/D.W.11 and Sultan Ahmad, Inspector/D.W.12 stated in defence of Master Nazir Ahmad, Shaukat All son of Muhammad Hussain and Muhammad Younas, appellants. Bashir Ahmad, D.W.9 stated about the longstanding political rivalry between the complainant party and Master Nazir Ahmad. Muhammad Siddiq D.W.10 stated that he had joined the investigation of the case and that he was an eye-witness. According to him, Master Nazir Ahmad remained present in his Ehata of his house at the time of occurrence and did not participate in the fight. Note: When the facts of this case were being dictated in open Court in presence of learned counsel for the parties, Malik Dost Muhammad Awan, Advocate (Learned counsel for the complainant), who had previously interfered many a time, had insisted that this portion of statement of Muhammad Saddiq D.W.10 should be added, which is being reproduced "Master Nazeer Ahmad, accused, to my information, which I have gained from other persons had only participated in the fight to the extent of separating Shafaqat v. Shafaqat". According to the learned counsel for the complainant, this belies the earlier statement of this P.W. That Master Nazeer Ahmad remained in his Ehata. The rest of the defence witnesses have not given any specific evidence and need not be discussed.
11. Sardar Ahmad Khan, learned counsel for Master Nazeer Ahmad, Muhammad Younas and Shaukat Ali son of Muhammad Hussain, appellants in Criminal Appeal No,40 of 2004 has argued that it is a case of two versions, one given by the prosecution and the other by the team of the Investigating Officers; that according to Investigating Officers only Shaukat Ali son of Barkat Ali was equipped with fire-arm and he had used the same during occurrence; that in case of two versions, the motive gets prime importance, in the instant case nothing is on record to show that Master Nazeer Ahmad had any animus against Mst. Bashiran, deceased; the learned counsel has referred to the statement of P.W.2 Shafaqat Ali, wherein it was stated that prior to this occurrence no enmity or rivalry existed between Master Nazeer Ahmad and his relatives and the complainant party; that P.Ws. Have thrown a very large net and their statements are not supported by the medical evidence, on that point he has explained that Muhammad Younas and Shaukat Ali son of Muhammad Hussain were involved in this case on the basis of injuries, which were exit wounds; that Shafaqat Ali and Ahmad Ali P.Ws., who allegedly received injuries at the hands of the accused, were not examined by any Doctor, which belies the allegations; that the P.Ws. Have been disbelieved to the extent of Muhammad Boota, Shafaqat Ali alias Shaukat Ali and Abdul Rauf acquitted co-accused and how their statements can be believed against the appellants without strong independent corroboratory evidence, which was lacking in this case; that P.W.1 received two injuries and the remaining two injuries were though exit wounds yet two persons were involved in this case on the basis of these exist wounds; that similarly according to prosecution Mst. Bashiran received three injuries at the hands of the accused yet according to postmortem examination report Mst. Bashiran received only two injuries and the remaining two were exit wounds; that according to prosecution eight accused were armed with sticks and Kassies yet they did not cause any injury to the complainant, Mst. Bashiran or any other P.Ws. During occurrence; that in case the accused caused injuries to the complainant party, then there was no need to go back to the house and collect pistol and the injuries could easily be caused by the sticks and Kassies, as the complainant was allegedly empty-handed; that injuries on the person of Shaukat Ali son of Barkat Ali, appellant, which are proved by the record, have been suppressed by all the P.Ws., which has caused further dent in their creditability; that the appellants were found innocent by almost every Investigating Officer, thus, it could not be said that it was mere opinion of the police officer and this fact can be considered as the Investigating Officers were produced during trial, both, by the prosecution as well as by the defence; and that the medical evidence only describes the injuries, which caused death but it does not lead to the killer.
' Mr. Muhammad Shahid Khan, Advocate/learned counsel for Shaukat Ali son of Barkat Ali, appellant, who had advanced his arguments on 28-11-2005 and is not present today, submitted that no motive has been alleged against Shaukat Ali in the F.I.R.; that P.W.1 had married with mother of the appellant in the existence of her earlier marriage and case was registered against P.W.1; that according to him, very strong enmity existed between the appellant and the complainant, as the appellant refused to accept the fact that his mother and his other brothers were living with Muhammad Hafeez, although his father Barkat Ali had not divorced Mst. Bashiran; that there was no occasion for the appellant to participate in the occurrence on the fateful day, as he was not related to the rest of accused and was not present during first part of the occurrence wheh altercation took place over lifting of earth between the complainant party and Master Nazeer Ahmad; that P.Ws. Had contradicted each other on material points. According to him P.Ws.1 and 2 stated that the accused brought pistol from the house of Muhammad Younas, while according to P.W.3, pistol was brought from the house of Abdul Ghaffar; that on the fateful day occurrence took place only between Master Nazeer Ahmad and his relatives of the complainant, he has referred to the statement of D.S.P./P.W.19 and stated that some of the women folk of Master Nazeer Ahmad, appellant also received injuries during the occurrence; that recovery of pistol did not enhance the prosecution case, as neither any empty was recovered from the spot nor the recovered pistol was sent to the Forensic Science Laboratory; and that there was no evidence of motive and consequential recovery against the appellant, who was falsely implicated in this case due to his enmity with Muhammad Hafeez.
12. Malik Dost Muhammad Awan, one of learned counsel for the complainant has argued that motive was not disputed, he referred to the tenor of cross-examination; that time of occurrence and place of occurrence is not disputed; that presence of eye-witnesses is also not disputed as they had received injuries during the occurrence and this fact was supported by the medical evidence; that the statement of injured P.W. Muhammad Hafeez was recorded soon after occurrence while he was admitted in the hospital and this ruled out the element of fabrication; that acquittal of some of the accused was not reflected upon the case of present appellants, as rest of the accused were acquitted while acting on the principle of safe administration of justice and there was no serious allegation levelled against them; that in this part of the world the principle of sifting the grain from chaff is applicable and in this case the statements of eye-witnesses are fully supported by the medical evidence; that it was long settled that opinion of the police was not binding upon the Courts; that in any case the opinion of the Investigating Officers could not be termed as eye-witnesses of the case; that the Investigating Officers had dishonestly stated that Master Nazeer Ahmad and Shaukat Ali son of Muhammad Hussain were innocent; that though direct allegation of firing was made against Shaukat Ali, while the Investigating Officers did not arrest either Master Nazeer Ahmad and Shaukat Ali, which reflects on their partiality; that the injuries on the person of Shaukat Ali son of Barkat Ali were not suppressed at all, however, according to him, the injuries on the person of Shaukat Ali were not mentioned in the F.I.R., as the same were not sustained during occurrence, he has referred to the cross-examination conducted on behalf of the learned counsel for Shaukat Ali, wherein strong efforts were made to show that the injuries were either self-suffered or suffered much later after the occurrence; he has referred to the initial medico-legal report Exh.P.J. And post-mortem report and has submitted that in fact both the reports reveal four injuries and their details have not been mentioned in Exh.P.J. Due to inadvertence of the medical officer and the prosecution should not suffer for lacking of experience of medical officer; he while referring to Exh.P.J. Submitted that the Doctor has clearly supported the prosecution case by stating that two lacerated wounds on the right side of abdomen .4 c.m. Apart from KUO of Mst. Bashiran; that the prosecution had proved its case against the appellant beyond doubt and the learned trial Court has not given any cogent reasons for not inflicting normal penalty of death upon Master Nazeer Ahmad and Shaukat Ali son of Barkat Ali, accused; and that no mitigating circumstances were available in favour of the appellants.
13. Mr. Abdul Rehman Tayyib, Advocate, other learned counsel for the complainant, with permission of the Court has added that real sons of Mst. Bashirandeceased would not involve Master Nazeer Ahmad in this case merely on the basis of existence of political rivalry; that there is nothing on record to show that Master Nazeer Ahmad contested any election directly against either of the P.Ws.; that it was wrongly stated that Mst. Bashiran married with Muhammad Hafeez in existence of earlier marriage, according to him, the prosecution proved beyond doubt that Mst. Bashiran was divorced and thereafter she married with Muhammad Hafeez, real nephew of her earlier husband; and that Mst. Bashiran was very noble lady.
14. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.
15. I have heard the learned counsel for the parties at great length and scanned the entire record minutely. The facts of this case are very peculiar. Mst. Bashirnandeceased in this case is mother of Shafaqat Ali, Liaqat Ali and Ahmad Ali, P.Ws. 2 to 4. Shaukat Ali son of Barkat Ali, appellant is real brother of P.Ws. 2 to 4. At the time of death Mst. Bashiran was wife of Muhammad Hafeez P.W.1 and her sons P.Ws.2 to 4 lived with her. However, Shaukat Ali, appellant never reconciled with the marriage and went into litigation against Muhammad Hafeez. It is also noteworthy that Muhammad Hafeez, complainant, later husband of Mst. Bashiran, was real maternal nephew of Barkat Ali, father of P.Ws. 2 to 4 and appellant Shaukat Ali. In the instant case Master Nazeer Ahmad and his relatives along with Shaukat Ali son of deceased Mst. Bashiran were implicated. There were eight accused in total in this case. Muhammad Boota, Shafaqat Ali, Shaukat Ali and Abdul Rauf son of Master Nazeer Ahmad were acquitted and the prosecution evidence was not believed to their extent. As already noted above four accused were convicted by the learned trial Court, who have challenged their convictions and sentences before this Court. Two of the appellants Muhammad Younas and Shaukat Ali son of Muhammad Hussain were acquitted of the charge of murder and were convicted and sentenced for offence under section 324, P.P.C. For causing injuries to Muhammad Hafeez P.W.1.
16. According to prosecution case, the trouble ensued over lifting of earth from the plot of the complainant, which was objected to by Shafaqat Ali, P.W.2, who was living along with his mother and Muhammad Hafeez P.W.1. All the accused allegedly gave beating to Shafaqat Ali, whose alarm attracted the complainant, Mst. Bashiran, deceased and other P. Ws. To the spot. When the complainant party tried to rescue P.W.2, the appellants left the scene of occurrence after issuing threats and returned with pistols in their hands and participated in the occurrence. All the appellants were assigned the role of effective firing. Master Nazeer Ahmad fired twice on the abdomen of Mst. Bashiran. Shaukat Ali son of Barkat Ali fired at the buttock of his mother Mst.
Bashiran. Master Nazeer Ahmad also fired at the complainant, which hit on the abdomen.
Muhammad Younas, Shaukat Ali son of Muhammad Hussain and Shaukat Ali son of Barkat Ali were also shown to have fired at the complainant. The fire of Muhammad Younas hit on the back of the complainant, while the fire of Shaukat Ali son of Muhammad Hussain hit on the wrist joint. Shaukat Ali son of Barkat Ali hit on the left thumb. All the eye-witnesses stuck to the story given in the F.I.R.
They also claimed to have received injuries during occurrence. While according to medical evidence, only Muhammad Hafeez, P.W.1 and Liaqat Ali received injuries. The injuries on the person of Muhammad Hafeez were caused by fire-arm, while three injuries on the person of Liaqat Ali P.W.3 were caused by the blunt weapon. According to prosecution case, Shafaqat Ali, who was being beaten by all the accused and on whose alarm the complainant party had rushed to the spot, was never examined by any medical officer and there is no proof on record that he was injured during the occurrence. Similarly no proof in the shape of medical evidence is available on record that Ahmad Ali was injured during the occurrence. Muhammad Boota, Shafaqat Ali and Abdul Rauf, who were allegedly armed with blunt weapons, have been acquitted by the learned trial Court. In these circumstances, P.Ws.1 to 4 can be believed against the appellants only on the basis of very strong independent corroboratory evidence. In the instant case, it is in the shape of medical evidence.
Obviously, the complainant party had thrown a very large net and the principle of shifting the grain from chaff is to be applied in order to come to a just decision.
17. Muhammad Younas and Shaukat Ali son of Muhammad Hussain were assigned one injury each on the person of Muhammad Hafeez, complainant caused by fire-arm. The injury attributed to Muhammad Younas was caused on the back while injury attributed to Shaukat Ali son of Muhammad Hussain was caused on the wrist joint. Perusal of medical report reveals that both these injuries were exist wounds of Injuries Nos.1 and 3. The complainant in his anxiety to involve maximum number of relatives of Master Nazeer Ahmad assigned injuries to Muhammad Younas and Shaukat Ali, which were in fact exist wounds. It is also an admitted fact that Master Nazeer Ahmad and rest of the appellants except for Shaukat Ali son of Barkat Ali had no enmity or previous grudge with Mst. Bashiran. It was only Shaukat Ali son of Barkat Ali, who was annoyed with his mother and the complainant, as Mst. Bashiran had left his father and married with Muhammad Hafeez, complainant. It is available on record that Shaukat Ali son of Barkat Ali, appellant got a criminal case registered through F.I.R. Exh.D.N. Against Muhammad Hafeez, Liaqat Ali, Shafaqat Ali and Ahmad Ali (P.Ws.1 to 4) for offences under sections 342/34, P.P.C. On 27-7-1999 much earlier to the present occurrence. Barkat Ali father of Shaukat Ali, appellant and P. Ws. 2 to 4 also got a case registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. Exh.D.M. Registered on 16-11-1999 against Mst. Bashiran and Muhammad Hafeez. Perusal of F.I.R.
Reveals that star witness mentioned in the F.I.R. Was Shaukat Ali, appellant. In short, enmity existed between Shaukat Ali and Muhammad Hafeez complainant prior to the occurrence, while there was no background of hostility or D enmity between the complainant and rest of the appellants.
Statement of Dr. Masood Jahangir P.W.8 further reveals that on the same date when he examined Muhammad Hafeez, P.W.1 and Liaqat Ali, P.W.3, he also examined Shaukat Ali son of Barkat Ali, who was produced before him by the police. His injury statement was also prepared by the police. The Doctor observed eight injuries on the person of Shaukat Ali. Injury No,2 was caused from a very close range by a fire-arm on medial side of right leg. Injury No,3 was its exit wound. The rest of the injuries were caused by a blunt weapon and the seat of injuries was head, right and left forearms, right shoulder, right wrist joint and left leg. In his own wisdom, the learned counsel for Shaukat Ali thought it fit to take defence that Shaukat Ali was not present at the time of occurrence and was given beating by Muhammad Hafeez, P.W.1, after the occurrence, while Shaukat Ali was present in his house, as is apparent from the tenor of cross-examination and the statement of Shaukat Ali recorded under section 342, Cr.P.C. Ironically it did not occur to the mind of the learned counsel that it was not possible for Muhammad Hafeez to go towards Shaukat Ali, who had not participated in the occurrence and give beating to him while he had a bullet wound in his abdomen.
18. The Doctor was cross-examined vis-a-vis the injuries on the person of Shaukat Ali, appellant at length. He conceded that on police query dated 7-11-2001 (Exh.D.A.) he had opined the possibility of causing the Injuries Nos.2 and 3 by friendly hands cannot be ruled out (however, circumstantial evidence will be also helpful). The Doctor during cross-examination also stated that similarly possibility of injuries having been caused by inimical hands could not be ruled out. According to Doctor, injury No,2 had been caused from a distance about one foot and blackening was present.
In his initial report, the doctor never opined that the injury could be caused by friendly hands. Even otherwise it does not appeal to reason that in order to create defence Shaukat Ali would try to lose his right leg. Even if injuries Nos.2 and 3 are ruled out of consideration, the rest of the injuries on the person of Shaukat Ali, appellant remained unexplained and none of the prosecution witness has mentioned the same.
19. Now coming to the case of Mst. Bashiran, deceased, according to prosecution evidence, Mst.
Bashiran received three injuries. Two were caused by Master Nazeer Ahmad, while one was caused by Shaukat Ali son of Barkat Ali. Dr. Saima Zulfiqar P.W.13 examined Mst. Bashiran soon after the occurrence, while she was alive. Her Medico-legal Report is available on record as Exh.P.J., wherein three injuries have been mentioned, one was on the buttock, Injury No,2 was two wounds about 4 c.m. Apart on right side of abdomen, while Injury No,3 was a lacerated wound 3 c.m. Apart on right anterior superior iliac supine. The Doctor did not mention whether injuries were caused by fire-arm or not. She also did not mention whether the injuries were entry wounds or exit wounds rather the doctor left the columns relating to nature of injuries, kind of weapon used and probable duration of injuries, vacant. She also did not mention hour of arrival and whether the injured was admitted in the Hospital or not. The report was prepared in a very cursory manner. It appears that the doctor was just a raw hand, who had no knowledge of medical jurisprudence. The same doctor conducted the post-mortem examination of Mst. Bashiran after her death on 18-11-2001. According to post- mortem report, Injury No,1, which was on the left buttock, was entry wound. While Injury No,2, which was on the right iliac foss!? Was an exit wound. Injury No,3, which was below the right anterior superior iliac supine, was an entry wound. Injury No,4, which was on the right iliac fossa 4 c.m. Below Injury No,2 was an exit wound. In short, according to medical evidence, Mst. Bashiran received two firearm injuries and not three, as claimed by the eye-witnesses.
20. The nutshell of the whole discussion is that the prosecution has not come out with whole truth and has given an exaggerated account of the occurrence. Similarly the defence version also suffers from suppression of truth. Shaukat Ali son of Barkat Ali stated that he was innocent; he was not present at the place of occurrence and was involved in this case due to previous enmity. In answer to question No,10, he stated that he had not received injuries during occurrence and took refuge in the statement of the complainant and other eye-witnesses , who had not mentioned the injuries inflicted upon him. Master Nazeer Ahmad stated that he was roped in this case due to political 'rivalry, while rest of the appellants stated that they were implicated in this case due to their relationship with Master Nazeer Ahmad. However, there is no evidence on record that Master Nazeer Ahmad or his father ever contested election against the complainant or his forefathers. His statement shows that he and his family belonged to Peoples Party, while family of the complainant belonged to Muslim League. This could hardly be a reason for involving a person in a murder case.
21. The learned counsel for the appellant has very heavily relied upon the statements of the Investigating Officers. The statements of the Investigating Officers are no more than opinions. They were not eye-witnesses of the occurrence. Opinion of Mice officer about guilt or innocence of an offender is irrelevant and inadmissible in evidence. The Courts have to scrutinize the evidence produced by the parties before it and arrive at right conclusions. Courts are not to be influenced by the opinion of F Investigating Officers. Opinion of the Investigating Officer plays important role for submitting reports under section 173, Cr.P.C. Before the Court but not thereafter. So it was held by the apex Court in the case of Nasir Abbas v. The State 1995 SCM R 1333. In another case titled as Waris Ali and 5 others v. State 2001 SCM R 640, the Honourable Supreme Court observed as follows:- - "Learned counsel is correct to the extent that learned members of the Division Bench in the High Court fell into a grave error of law by concurring with the view expressed by the trial Court while confirming the death sentence of appellant Khalil alias Khalila on the basis of opinion of Investigating Officer. Learned trial Court was apparently persuaded to place heavy reliance on the opinion of the Investigating Officer that the fire-arm injuries on the person of the deceased were the result of one man shot and that according to the investigation appellant Khalil was responsible for the shot. We are not inclined to approve of this approach to the opinion of the Investigating Officer which was neither relevant nor in any event, binding on the Courts below."
22. In the above noted circumstances, it is apparent that both the parties have not come out with true story and have tried to minimize their own part in the incident but incompleteness of the tale would not deter the Court from drawing inferences that properly flow from evidence and circumstances. Reliance is placed on case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502.
23. The analysis of whole evidence makes it manifest that situation deteriorated over lifting of earth from the plot belonging to the complainant, which led to this unfortunate occurrence. It was not a premeditated attack at all rather the occurrence was the result of sudden affair. During occurrence Shaukat Ali son of Barkat Ali had also received injuries, which were neither mentioned nor explained by the P.Ws. However, the fact remains that the statements of the eye-witnesses are corroborated by the medical evidence that Master Nazeer Ahmad and Shaukat Ali son of Barkat Ali caused one injury each to the deceased as well as to the complainant. The act of the appellants attracts the provisions of exception 4 of section 300, P.P.C. (Old). It was held by the Honourable Supreme Court of Pakistan in the case of Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 that the provisions of section 300, P.P.C. (Old) could be looked into and the cases, covered by exceptions to section 300, P.P.C. (Old) read with section 304, P.P.C., were intended to be dealt with under section 302(c), P.P.C.
The conviction of Master Nazeer Ahmad for offence under section 302(b) is altered to offence under section 302(c), P.P.C. And his sentence is reduced to 20 years' R.I. For the reasons stated above and not for the reasons narrated by the learned trial Court, which are against law, the conviction of Shaukat Ali son of Barkat Ali under section 302(c), P.P.C. Is maintained. However, his sentence is reduced to 201J years' R.I. The sentences inflicted upon Master Nazeer Ahmad and Shaukat Ali son of Barkat Ali, appellants, for offence under section 324, P.P.C. Are maintained.
However, the sentences are reduced to five years' R.I. Each. The sentences would run concurrently.
Benefit of section 382-B, Cr.P.C. Is maintained. The direction of the trial Court relating to compensation is maintained against both the appellants.
24. With the above noted modification in convictions and reduction in sentences, both the appeals to the extent of Master Nazeer Ahmad and Shaukat Ali son of Barkat Ali are partly allowed.
25. As far as appellants Muhammad Younas and Shaukat Ali son of Muhammad Hussain are concerned, as already noted above, the injuries attributed to them were exit wounds. Criminal Appeal No,40 of 2004 to their extent is allowed. The judgment passed by the learned trial Court to their extent is set aside. They are acquitted of the charges. They are on bail, their bail bonds are cancelled and the sureties are discharged.
26. For reasons narrated above, I find no merit in criminal revision seeking enhancement of sentence and the same is dismissed.
27 .The order passed by the learned trial Court in para.22 of the judgment against Abdul Ghaffar son of Suleman, who has absconded, would remain intact and in case he is arrested his case would be decided on its own merits.