The appellants namely Zakir Hussain, Shah Khalid, Abid Hussain alias Baboo, Munawar Hussain, Mulazim Hussain, Muhammad Farooq and Muhammad Aslam were tried by the learned Addl.
Sessions Judge, Okara under Sections 392/324/404/148/149 PPC. The learned trial Judge vide his judgment dated 14.3.2002 convicted and sentenced each or the appellants to imprisonment for life and further ordered to pay compensation of Rs, 25,000/- each or in default to suffer one year RI.
Mulazim Hussain appellant was further convicted u/S. 337-F(vi) PPC to pay daman and also sentenced to undergo 7 years R.I. the sentence was ordered to run concurrently.
2. All the appellants/convicts preferred the instant appeal against .heir sentence and conviction.
3. Briefly the facts of this FIR lodged by Muhammad Ali complainant are that on the night of occurrence at 9.00 p.m. he alongwith his nephew Ghulam Ali, Shaukat Ali, Ghafar Ali and Mazhar Ali were returning to home after attending a punchayat in Gujjar colony. The complainant and Ghulam Ali were ahead of the rest of the persons while Haji Shaukat Ali, Mazhar Ali and Ghafar Ali were at a distance of some feet behind them. when they reached near the darbar of Baba Keerianwala, where electric light was on, all of sudden, from the trees, Gulzar Ahmad armed with hatchet, Munawar Hussain armed with rifle, Mulazim Hussain armed with sota, Abid @ Baboo armed with sota, Zakir Hussain armed with sota, Farooq Ahmad armed with carbine, Shah Khalid armed with sota, Muhammad Aslam armed with sota came out. Gulzar gave hatchet blow at the head of Ghulam Ali who had fallen down on the ground. Munawar Hussain and Farooq fired shots which hit Ghulam Ali at his arm and left shin. Mulazim Hussain gave sota blow to the complainant which hit him at his left wrist which was fractured. Afterwards, Abid, Mulazim Hussain, Zakir Hussain, Shah Khalid and Muhammad Aslam gave beating with their sotas to Ghulam Ali deceased and to the complainant/injured, as a result of which, various bones of the bodies of Ghulam Ali and complainant were fractured. Ghulam Ali, nephew of the complainant succumbed to the injuries.
The cause of enmity is stated that previously Gulzar Ahmad had lodged FIR against them and in order to revenge, all the accused had caused qatl-e-amd of Ghulam Ali deceased and had caused injuries to the complainant.
4. The appellants were charge sheeted, to which, they pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses in all to prove its case.
5. The appellants were examined under Section 342 Cr.P.C. They denied the allegations levelled against them. The did not opt to appear as their own witness under Section 340(2) Cr.P.C. nor produced any defence evidence.
6. The learned trial Judge after appreciating the prosecution evidence, convicted and sentenced the appellants as indicated above.
7. The prosecution relied upon the recovery evidence, medical evidence, motive and the ocular account.
8. The motive part of the prosecution case is of an FIR lodged by Gulzar Ahmad a Proclaimed Offender against the complainant/deceased. There is no evidence worth the name on the record to prove motive against the appellants. The appellants had no reason or rhyme to seek any revenge either from the complainant or the deceased on account of incident which resulted into lodging of FIR by Gulzar Ahmad. The motive has not thus, been proved against the appellants.
9. Dealing with the evidence of recovery, it is observed at the very outset that Zakir Hussain, Shah Khalid, Muhammad Aslam, Abid Hussain and Mulazim Hussain appellants were allegedly armed with sotas recovered at their instance. Aforementioned weapons were not blood stained did not carry any identification mark and are comnionly available. Such a recovery looses its evidentiary value, furnishing no corroboration.
Munawar Hussain and Muhammad Farooq appellants were armed with rifle and carbine respectively. These weapons were recovered from their possession. PW-8 Qasim Ali HC stated that on 26.3.2000, the I.O. had delivered him two sealed parcels of empties, one of .12 bore empty and another of bullet. He kept them in Malkhana for safe custody and handed over to Khadim Hussain constable for delivery in the respective offices. On 26.4.2000, he also delivered sealed parcels contained .7 MM rifle and carbine .12 bore alongwith two cartridges for safe custody in Malkhana.
On 13.5.2000, he delivered these parcels to Imam Ali for delivery to the office of Fornesic Science Laboratory. Lahore Khadim Hussain Constable, to whom parcels of empties were allegedly delivered did not appear in the Court. He was not, cited prosecution witness. No reason has been advanced by the prosecution in this regard. Imam Ali Constable while appearing' as PW-4 stated that on 18.5.2000, he delivered the parcels of .12 bore carbine and rifle .7 MM in the office of FSL. Who deposited the empties is not being established from the prosecution evidence. Khadim Hussain as aforesaid did not appear in the witness box. Imam Ali has not taken the parcel of empties to the FSL. Keeping the parcels of empties from 26.3.2000 in the Malkhana and its delivery to the FSL on 13.5.2000 as mentioned in Ex. PBB causes a serious dent to the prosecution case. Sending parcels of empties alongwith weapon of offence after recovery makes the recovery doubtful and the same thus, cannot be relied upon. The evidence of recovery is thus, ruled out of consideration.
10.The medical evidence consists on the statements of Dr. Ghulam Hussain Alvi PW-1 and Dr. Muhammad Nuzhat Kazmi PW-16. PW-1 conducted the post-mortem examination on the dead body of Ghulam Ali deceased. He found 10 injuries on his person. He opined that death was direct result of Injuries Nos, 1, 7 & 9. Injuries No, 7 & 9 are lacerated wounds. In cross-examination, Medical Officer admitted that there were no exit wounds of Injuries Nos, 7 & 9. He also conceded that no foreign body like pellet or bullet was recovered from the aforementioned Injuries Nos, 7 & 9. A relation' of appellants submitted application to the District Magistrate -for exhumation of the dead body on the plea that there is neither injury of fire arm nor of a sharp edged weapon, on the dead body of the deceased. This petition was allowed. However, the complainant side challenged the order for constitution of the Medical Board by voicing grievance through criminal revision before the trial Court. It did not find success. Their writ petition in this Court was also dismissed. The complainant challenged the order before the Hon'ble Supreme Court. On account of commencement of trial passage of considerable time and to avoid further delay in the trial, the Hon'ble Supreme Court was pleased to set-aside the order of re-post-mortem examination on 10.10.2000. The complainant has a right, undoubtedly, to seek and pursue the remedy available to him in the Court of law. However, his conduct in pursuing the above said remedy is not above board. They perhaps made every effort to conceal truth and cause impediment in the way of the Court. The complainant fully knew that the fire-arm injury had neither any exit nor foreign bodies were recovered. They should have opted for exhumation and re-post-mortem examination on the dead body to substantiate their case through the opinion of Medical Board. The flaw in the prosecution case, if any, would have been cured. Re-action of the complainant was uncalled for and an attempt to conceal the truth. Question crops up, if Injuries Nos, 7 & 9 were on account of fire-arm then either there should be exit wound or the foreign body must have been present on the dead body, in absence whereof doubt arises about Injuries Nos, 7 & 9 having been caused by fire- arm. The benefit of every doubt always goes to the accused.
11. The ocular account has been furnished by Muhammad Ali injured PW-11 and Shaukat Ali PW-12.
They are closely related to each other. Generally relationship by itself is not enough to discredit a witness but when there is deep rooted enmity, independent corroboration is insisted. Mere stamp of injury on his person would not prove that whatever narration of the incident has been given by him is correct. He may be present at the spot and received injuries but chosen not to elicit the correct facts.
12. Deep rooted enmity is admitted by PW-11, that he was the prosecution witness in case FIR No, 101/9 u/Ss. 365/379/337-A PPC etc. against Muhammad Aslam, Amir, Zahoor, Ghulam Muhammad and Saqlain. He was also witness in FIR No, 127/90 u/Ss. 307/353 PPC against Ghulam Mustafa etc. He got registered a, hurt case against Gulzar Hussain P.O. Munawar Hussain and Mulazim Hussain appellants by way of FIR No, 485/98. Haji Shaukat Ali PW-12 was also a witness there. He also, conceded registration of a hurt case vide FIR No, 247 by appellant Munawar Hussain against the deceased Ghulam Ali and others. He admitted registration of case vide FIR No, 163/89 about double murder of Bashir Ahmad and Qudrat Ullah against his brother Manzoor, Saood PW of this case and Altaf son of Manzoor. Gulzar Ahmad P.O. was a prosecution witness in the said case PW-11 and PW- 12 were also witnesses in. FIR No, 399/99. A case u/S. 365/308 PPC was got registered by one Muhammad Shafi against his real brother Manzoor and others. A case for abduction and commission of Zina was registered against him and his brother Manzoor. He was a prosecution witness in case registered u/S. 307/353 PPC against Ghulam Mustafa and others. He alongwith PW- 12 was a recovery witness in case registered u/Ss. 366/148/149 PPC against Munawar Hussain, Mulazim appellants and Gulzar P.O. He conceded that he and his brothers were prosecution witnesses against many persons in criminal cases and as such had large number of enemies. PW.11 Muhammad Ali was confronted with his statement Ex. PC. He stated that fire of carbine attributed to Farooq caused had hit at the right below of the deceased. He did not mention this aspect in Ex.PC specifically. Similarly injury on the left shin of the deceased was specifically attributed to Munawar but on confrontation, he admitted that seat of injury was not specifically attributed to Munawar. Sota blow by Mulazim Hussain landed on his left wrist but he did not mention the same specifically in Ex. PC. PW-12 had also made improvements in his statement and was confronted with his previous statement Ex. DA.
13. The occurrence took place at a dark night. The source of identification is claimed to be a light emitted by an electric bulb at Darbar of Baba Keerianwala. The I.O. while inspecting the spot found that electric was being supplied to the Darbar through a wire from the house of the accused/appellants. Supply was not by regular meter. A bulb was hanging on a pole. The I.O. did not secure the bulb from the Darbar to ascertain its voltage as to whether it can emit sufficient light at place of occurrence, 114 feet away. The appellants would not have allowed this facility at the Darbar to facilitate their recognition while laying an ambush in the way of the accused. The erection of ordinary pole at Darbar Keerianwala and supply of electricity through a wire without any regular meter is only a manoeuver to advance the prosecution case.
14. The I.O. conducted the investigation of this case right from the day of occurrence. He finalized the proceedings and submitted challan. He while appearing as PW-15 stated that when he confronted the complainant and their supporters during the investigation, the complainant party pleaded that accused persons should disclose as to who had murdered Ghulam Ali deceased and caused injuries to Muhammad Ali. For facility of reference, portion of his statement in cross- examination is reproduced as under: "The accused persons offered to give oath on Holy Quran to the complainant party about their non-involvement in this case, but the complainant party refused the same. On 25.4.2000, both the parties joined the investigation with me in this case and I confronted the complainant party, their supporters, the supporters of the accused party and during that investigation, the complainant party pleaded that the accused persons should disclose the name of the persons who had murdered Ghulam Ali deceased and caused injuries to Muhammad Ali, who were four in number, instead of Muhammad Aslam, Zakir Hussain, Munawar Hussain and Mulazim Hussain accused persons."
15. The statement of the I.O. in cross-examination was not questioned by the prosecution. This itself indicates that Muhammad Aslam, Zakir Hussain, Munawar Hussain and Mulazim Hussain were not the accused persons.
16. The very coming of the complainant side from Gujjar Colony after attending a punchayat allegedly has not proved. No witness from the punchyat appeared to prove the prosecution case of complainant and the deceased having attended the punchayat and left the place at a given time.
Even the person in whose house the punchayat was held did not come forward in investigation.
17. Complainant's admitted enmity with the appellants and with so many other persons call for an independent corroboration of the ocular account. In pitched darkness of night, who assaulted the deceased and complainant may not have been identified by the PWs. It is not safe in the circumstances to rely upon the statement of Muhammad All and Shaukat PWs who had been accused of heinous crimes and prosecution witnesses in a number of cases. Having large number of enemies, the deceased might have been murdered by some other persons than the appellants and on account of doubt, they have been involved.
18. The prosecution has failed to prove its case beyond reasonable doubt. The appellants, thus, are entitled to acquittal.
19. For what has been discussed above, this appeal is allowed, conviction and sentence of the appellants under Sections 302-B & 337-F(vi) PPC vide impugned judgment dated 14.3.2002 is set- aside. They are acquitted of the charge and be released forthwith, if not required to be detained in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.