SARDAR MUHAMMAD RAZA KHAN, J.--- Leave has been granted to Muhammad Ishaque son of Ghulam Din against the judgment dated 10-6-2002 rendered by a learned Judge in Lahore High Court, Rawalpindi Bench, whereby his appeal against conviction and sentence was rejected.
Initially, learned Additional District and Sessions Judge, Gujar Khan vide judgment, dated 31-10- 2000 had convicted the appellant under section 302, P.P.C. And sentenced him to life imprisonment and to a payment of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. He was also convicted under section 324, P.P.C. And sentenced to imprisonment for five years with a fine of Rs,10,000.
2. The background of the occurrence given by Zafar Iqbal complainant is that, on 19-4-1999 at about 6-15 a.m. He was giving lesson to children in the village mosque when Muhammad Ishaque appellant called him from the rooftop of one Talib Hussain asking the complainant to come out of the mosque. On second call the complainant replied that he would come out after completion of Daras. On third call he came out to the courtyard of the mosque with the same answer. The appellant descented from the rooftop, went to his house, returned while armed with a .12 bore shotgun and fired three shots at Zafar Iqbal, hitting the outer wall and the right side of the outer gate.
3. Hearing the report of fire shots Shaukat Ali, the brother of the complainant ascended the rooftop of the house of All Qadar and forbade Muhammad Ishaque from firing. Muhammad Ishaque turned towards Shaukat Ali and fired at him hitting him on his chest. The victim died on the spot.
The occurrence, besides complainant, was said to have been witnessed by Manga Khan and All Qadar. The motive is, that about a year prior to the occurrence, Muhammad Ishaque had lodged a report under section 337-A, P.P.C. Against the complainant as well as Shaukat Ali, the deceased. A day prior to the occurrence i,e, on 18-4-1999 Shaukat Ali deceased and Muhammad Ishaque accused had quarrelled with each other on a dispute over a path. The complainant had intervened to settle the matter.
4. On conclusion of trial, the prosecution relied upon the ocular testimony of Zafar Iqbal P.W.4, Ali Qadar P.W.5 and Manga Khan P.W.6. Further support is sought from the post-mortem report, recovery of .12 bore shotgun at the instance of the accused, on 24-5-1999. It may be recalled that the occurrence having taken place on 19-4-1999, the accused was arrested on 17-5-1999 while the discovery of gun occurred on 24-5-1999. Admittedly, it was a licensed shotgun.
5. It is a fact proved on record that not only the complainant but also the two eye-witnesses have direct enmity with the accused and a case already stood registered against them under section 337-A, P.P.C. At the instance of the wife of Muhammad Ishaque appellant. In this background of proved enmity, the ocular testimony of all the three witnesses would require strong support from unimpeachable source. Whether such corroboration is available or not, is the important exercise to be adhered to.
6. Beginning from Zafar Iqbal, one may recall that he was allegedly fired at three shots from .12 bore shotgun by the appellant, from a distance of 160 feet. In spite of a wide dispersal in view of the distance involved, the complainant escaped totally unhurt. This cannot be overlooked on the argument of being a coincidence because in almost the same distance, the assailant killed Shaukat Ali with just one fire shot. We inculcate doubt qua the presence of complainant in the mosque. No pellets were recovered from the mosque and no child receiving lesson from the complainant was ever examined.
7. Despite the murder of his real brother, allegedly witnessed by him, the complainant did not go to the police station. Someone by the name of Ch. Muhammad Azeem Member District Council had informed the police. Had the complainant been present on the spot he would certainly have gone to lodge the report.
8. There is also an unexplained delay extending to about five and a half hours in lodging the report.
Apparently, it seems to have been D delayed by two hours fifteen minutes but the evidence negates it altogether. The Investigating Officer Noor Muhammad, S.-I. (P.W.8), during cross- examination and in his spontaneous first breath, admitted that telephonic information was received by him at 5-00 a.m. Meaning thereby that the occurrence must have taken place prior to 5-00 a.m. As against the time given by the complainant as 6-15 a.m. Realizing that his receipt of telephonic information at 5-00 a.m. Contradicts the entries in the F.I.R. The Investigating Officer corrected himself saying that the information was received at 7-30 a.m. And he reached the spot in one hour i,e, at 8-30 a.m. All the witnesses have unanimously stated that the Investigating Officer reached the spot at 10-00/10-30 a.m. We are of the considered view that the occurrence had taken place prior to 5-00 a.m. Not witnessed by anyone and so the deliberations were made in recording the F.I.R. After 10-30 a.m. But incorrect time was mentioned in the F.I.R. As 8-30 a.m. In order to conceal the possibility of deliberations.
9. When cross-examined, the complainant said that he had joined the Fajar prayer at about 4-30 a.m. But did not remember the name of Pesh Imam. Anyhow, he is not the Pesh Imam Realizing the probable contradictions, he suddenly took a some resault and said that he had offered the prayer at 5-00/5-30 a.m. Individually. Such contradictions indicate that he was not at all present at the mosque. His false presence was concocted to bring the time of occurrence to 6-15 a.m. Which seems to be prior to 5-00 a.m.
10. The complainant and other witnesses admitted that the roof of the house of one Muhammad Sarwar was at a higher level than that of Talib Hussain where the assailant was standing.
According to site plan the roof of Muhammad Sarwar intervenes the places of the accused and the victim. One cannot make out from the site plan as to whether the roof of Ali Qadar where the victim died was clearly seen from the courtyard of the mosque. The presence of the witnesses as well as the alleged time of occurrence is highly doubtful.
11. Corroboration is sought from the motive but, as the aforesaid background would suggest, it can cut both ways and can equally be al motive for false charge.
12. Further corroboration is sought from the discovery of 12 bore shotgun. Strictly speaking, it is not discovery at all, at the first place because the gun of the accused is licensed one, which licence was recovered along therewith. Moreover, it did not match with all the four empties allegedly recovered from the rooftop of Talib Hussain, a place attributed to the accused.
13. Last but not the least, corroboration is sought from the postmortem report but strange it is to observe that it was totally ignored by the two Courts that post-mortem report has further damaged the already doubtful case of the prosecution. We are surprised to notice that there is burning on all the four inlet wounds of the deceased. Such burning can occur at the most from a distance of 5 to 6 feet from muzzle to the victim. Amazingly, the distance from the assailant to the victim is 132 feet.
14. One cannot say that the doctor has written burning on the inlet wounds incorrectly and that the injuries could not have been caused from short distance. Before adverting to this discussion, we may settle one thing once for all that burning from a distance of 132 feet is impossible. Now, coming to the other attending circumstance, one may realize that from a distance of 132 feet, as in the site plan, the dispersal is larger and velocity and force becomes slower and weaker. This is totally negated by H the remaining observations of the doctor on the post-mortem report, which shows that the walls, ribs and cartilages, pleurae, larynx and trachae, right lung, left lung small intestines, large intestines and liver were damaged. The pellets were recovered from left lumber region and lower and lateral part of left scapula indicating a positive deflection that could have occurred only when there was a force behind. Such force could not have been possible from a distance of 132 feet and from a .12 bore Shehbaz shotgun of Pak made. Other doubts about the occurrence mentioned in the earlier part are fortified by the post-mortem report showing burning on the inlet wounds. We are quite certain that it was an unseen occurrence where recording of F.I.R.
Was delayed with the help of a dishonest investigation.
15. For the aforesaid reasons, we had recorded our acquittal of the appellant on 8-8-2006, accepting the criminal appeal as well as jail petition and setting aside the impugned judgment, dated 10-6-2002 of the learned Lahore High Court, Rawalpindi Bench. These are our reasons for the short order dated 8-8-2006.