' SARDAR MUHAMMAD ASLAM, J.---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 Additional Sessions Judge, Okara under sections 392/324/404/148/149, P.P.C.
The learned trial Judge vide his judgment dated 14-3-2002 convicted and sentenced each of the appellants to imprisonment for life and further ordered to pay compensation of Rs,25,000 each or in default to suffer one year's R.I. Mulazim Hussain appellant was further convicted under section 337-F(vi), P.P.C. 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 their sentence and conviction.
3. Briefly the facts of this F.I.R. Lodged by Muhammad Ali complainant are that on the night of occurrence at 9-00 p.m. He along with 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 a sudden, from the trees, Gulzar Ahmad armed with hatchet, Munawar Hussain armed with rifle, Mulazim Hussain armed with Sota, Abid alias 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 F.I.R. Against them and in order to revenge, all the accused had caused qatl-eamd 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. They 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 F.I.R. 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 F.I.R. 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 commonly available. Such a recovery loses 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. P.W.8 Qasim Ali H.C. Stated that on 26-3-2000, the Investigating Officer 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 along with two cartridges for safe custody in Malkhana.On 13-5-2000, he delivered these parcels to Imam Ali for delivery to the office of Forensic 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 P.W.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 parcels 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 Exh.P.B.B. Causes a serious dent to the prosecution case.
Sending parcels of empties along with 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 P.W.1 and Dr. Muhammad Nuzhat Kazmi P W 16. P.W.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 and 9. Injuries Nos.7 and 9 are lacerated wounds. In cross-examination, Medical Officer admitted that there were no exit wounds of injuries Nos.7 and 9. He also conceded that no foreign body like pellet or bullet was recovered from the aforementioned injuries Nos.7 and
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. The 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 very 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. Reaction of the complainant was uncalled for and an attempt to conceal the truth. Question crops up, if injuries Nos.7 and 9 were on account of fire-arm then either there should be exit would or the foreign body must have been present on the dead body, in absence whereof doubt arises about injuries Nos.7 and 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 P.W.11 and Shaukat Ali P.W.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 P.W.11, that he was the prosecution witness in case F.I.R.
No,101/90 under sections 365/379/337-A, P.P.C. Etc., against Muhammad Aslam, Amir, Zahoor,Ghulam Muhammad and Saqlain. He was also witness in F.I.R. No,127/90 under sections 307/353, P.P.C. Against Ghulam Mustafa etc. He got registered a hurt case against Gulzar Hussain P.O. Munawar Hussain and Mulazim Hussain appellants by way of F.I.R. No,485/98. Haji Shaukat Ali P.W.12 was also a witness there. He also conceded registration of a hurt case vide F.I.R. No,247 by appellant Munawar Hussain against the deceased Ghulam Ali and others. He admitted registration of case vide F.I.R. No,163/89 about double murder of Bashir Ahmad and Qudrat Ullah against his brother Mnazoor, Saood P.W. Of this case and Altaf son of Manzoor. Gulzar Ahmad P.O. Was a prosecution witness in the said case. P.W.11 and P.W.12 were also witnesses in F.I.R. No,399/99. A case under sections 365/308, P.P.C. Was got registered by one Muhammad Shafi against his real brother Mnazoor 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 under sections 307/353, P.P.C.
Against Ghulam Mustafa and others. He along with P.W.12 was a recovery witness in case registered under sections 366/148/149, P.P.C. Against Munawar Hussain, Mulazim appellants and Gulzar P.O. He conceded that he and his brother were prosecution witnesses against many persons in criminal cases and as such had large number of enemies. P.W.11 Muhammad Ali was confronted with his statement Exh.P.C. He stated that fire of carbine attributed to Farooq accused had hit at the right elbow of the deceased. He did not mention this aspect in Exh.P.C. 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 Exh.P.C. P.W.12 had also made improvements in his statement and was confronted with his previous statement Exh.D . A .
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 Investigating Officer 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 Investigating Officer did not secure the bulb from the Darbar to ascertain its voltage as the 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 manoeuvre to advance the prosecution case.
14. The Investigating Officer conducted the investigation of this case right from the day of occurrence. He finalized the proceedings and submitted challan. He while appearing as P.W.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 jointed 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 person."
15. The statement of the Investigating Officer 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 punchayat 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 P.Ws. It is not safe in the circumstances to rely upon the statement of Muhammad Ali and H Shaukat P.Ws. 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 and 337-F(vi), P.P.C. 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.