' HASNAT AHMED KHAN, J.---This judgment will dispose ofCriminal Appeal No,257 of 1998 filed by the appellants Naseer Ahmad and Abdullah who vide judgment, dated 13-7-1998 passed by the learned Sessions Judge, Sahiwal were found guilty under section 302/34, P.P.C. For Qatl-e-Amd of Theraj, deceased and sentenced to imprisonment for life with the benefit of section 382-B, Cr.P.C.
And Criminal Revision No,179-98 filed by the complainant Muhammad Yousuf for enhancement of sentence of the appellants.
2. Brief facts of the case which was registered on the statement of Muhammad Yousaf, complainant vide F.I.R. No,84 (Exh.P.A.), dated 2-4-1995 are that on 2-4-1995 he, along with Khan son of Muhammad, Lal son of Ahmad and Thiraj (deceased), on the occasion of fair of Hazrat Baba Muhammad Pannah reached at the dera of Muhammad Mansha resident of Kameer and when came back to said dera after seeing fair at 9-30 p.m. They started chatting with each other. The complainant, Thiraj and Khan son of Lal went towards the standing crops to ease themselves. In the meanwhile Naseer Ahmad appellant armed with .12 bore gun, Jaffer (since dead) armed with sota and Abdullah appellant armed with gun reached there. On raising Lalkara by Jaffer, Naseer Ahmad and Abdullah aimed their guns at the complainant party. Naseer Ahmad appellant fired with his gun hitting at the right arm-pit of Thiraj while Abdullah appellant caused fire-arm injury on right shoulder of deceased and thereafter all the three accused decamped.
3. Motive for the occurrence was that Naseer appellant was carrying on illicit relations with Mst.
Bakhat Bhari, sister of the complainant. Mst. Bakhat Bhari was got murdered by Riaz, nephew of the complainant and apart from that there was a dispute of agricultural land for which the accused/appellants committed murder of Theraj deceased.
4. After completion of the investigation the appellants were challaned and charge sheeted by the learned trial Court.
5. In order to prove the case, prosecution produced as many as eight witnesses. Mirza Qasim Baig and Ali Ahmad Dogar, D.S.Ps., were examined as C.W.1. And C.W.2. Auranzeb A.S.-I. (P.W.1) and Reiman, P.W.2 are formal witnesses; Noor Ahmad Patwari who prepared the site-plan appeared as P.W.3; Dr. Ijaz Hussain Awan, Medical officer who conducted Postmortem Examination upon the dead-body of Theraj appeared as P.W.4 and the detail of injuries suffered by Theraj (deceased) along with relevant observations is as under:--
(1) A lacerated fire-arm out let wound 3 cm in diameter, below the right shoulder, 10 c.m. Above the right nipple, edged averted.
(2) A lacerated fire-arm wound 3 c.m. In diameter below the right exilla (arm-pit), medially.
(3) A lacerated fire-arm wound 1 c.m. x 1 c.m. x 2 c.m. Below the second injury.
(4) Lacerated fire-arm wound 1 c.m. x 1 c.m. x 2 c.m. Lateral to injury No,3.
(5) A lacerated firm-arm wound 1 c.m. x 1 c.m. x 3 c.m. Lateral to injury No,2.
' The above mentioned injuries Nos.1,3,4 and 5 were inverted and blackening around the injuries was present. During dissection, said Doctor found the skin ruptured, lymph notes and intercostals margins were ruptured. Pleura, lungs, matter and sub-clevian arteries of right side were ruptured. In thorax 3rd and 4th rib of right side fractured. Pleura ruptured. Right lung injured and sub-cleavian artery ruptured. Other organs were healthy.
' Muhammad Yousaf complainant and Khan son of Mamand appeared as P.W.5 and P.W.7 respectively and provided ocular version. Dilshad Ali Khan, DSP, who investigated the case appeared as P.W.6. Muhammad Anwar. Inspector Police appeared as P.W.B. He deposed that on the day of occurrence he inspected the place of occurrence, prepared rough site-plan Exh.P.H.
Injury statement Exh.P.E. And Inquest report Exh.P.F. Of the deceased. He further stated that he secured the blood-stained earth vide memo. Exh.P.G. And after postmortem examination he took into possession the blood-stained clothes as Exh.P.B. According to him the accused were arrested on 10-4-1995. Thereafter he got prepared site-plan Exh.P.C. And P.C./1 from Noor Ahmad, Patwari, P.W.3. On 28-5-1995 he submitted incomplete challan.
6. Mirza Muhammad Qasim Baig DSP who had also investigated the case appeared as C.W.1 while Ali Muhammad Dogar, DSP who after the investigation declared all the three accused innocent, appeared as C.W.2. After tendering the reports of Chemical Examiner Exh.P.1 and that of Serologist Exh.P.J. The learned D.D.A. Closed the prosecution case. Whereafter the appellants were called upon to appear under section 342, Cr.P.C. During statements both the appellants denied the charges and claimed innocence. It would be relevant to point out here that during the trial the third accused had died. After completion of the trial both the appellants were held guilty and sentenced under section 302-B, P.P.C. As mentioned above.
7. During the pendency of the abovementioned appeal, sentence awarded to Naseer Ahmad appellant was suspended by this Court vide. Order, dated 16-5-2001 while the other appellant is still in jail.
8. Mr. Tariq Zulfiqar Ahmad Chaudhry, Advocate has appeared onbehalf of Naseer Ahmad, appellant and has contended that the prosecution has miserably failed to prove its case beyond shadow of doubt; that it was a night time occurrence and no source of light at the time of occurrence had been shown by the prosecution and it was night of 30th Shawal and as such there was not even possibility of light of moon on the night of occurrence that according to Muhammad Anwar, P.W.8 the dead-body was recovered from the dera of Mansha instead of place of occurrence; that no recovery had been effected from the appellants. According to the doctor at the time of the postmortem examination no holes in the clothes of Theraj deceased were found; the occurrence took place at the distance of 20/22 miles from the house of the deceased and the appellants could not know the programme of visiting shrine of Hazrat Baba Muhammad Pannah by the appellants; that the prosecution story is not probable. Lastly he has contended that ocular evidence is full of contradictions.
9. Mian Rashid Ahmad, Advocate while appearing on behalf of Abdullah appellant has contended that the prosecution evidence was totally contradicted by the medical evidence inasmuch as according to Dr. Ijaz Hussain Awan, P.W.4 blackening around the injuries Nos.2, 3, 4 and 5 received by the deceased, was present which contradicts the ocular account whereby the presence of the witnesses had been shown at the distance of 4/5 karams; none of the natural witnesses who could be the inhabitants of the dera near which the occurrence took place was produced by the prosecution and the alleged eye-witnesses of the occurrence were not natural witnesses rather they were chance witnesses; the F.I.R. Was not recorded at the time shown by the prosecution. To strengthen this point he has referred to the evidence of P.W.7 who admitted that F.I.R. Was recorded at 3 a.m. Lastly he has contended that according lo P.W.4 the duration of injuries and death was within one hour and this piece of evidence make it crystal clear that it was an unseen occurrence as had it been a seen occurrence, the efforts would have been made to remove Theraj, deceased to the hospital, to save his life.
10. While exercising right of rebuttal the learned State counsel assised by the counsel for the complainant has contended that the prosecution has proved its case beyond any shadow of doubt; the F.I.R. Wai promptly lodged; motive part of the prosecution was proved; that medical evidence was not contradictory to the ocular account. Lastly they have contended that while preparing the site-plan Exh.P.C. The author of the same had shown a point indicating the existence of electric pole. As such during the occurrence the appellants were identified in the light of bulb.
11. In support of the criminal revision filed by the complainant, forthe enhancement of the sentence, the learned counsel for the complainant has contended that while passing the impugned judgment the learned trial Court did not advance any reason whatsoever for not awarding the normal penalty of death to the appellants. When he was questioned as to why the criminal revision was not pressed at this preliminary hearing and now it is being pressed after eight years of the filing of the same, he could not reply satisfactorily.
12. I have heard both the parties and have also gone through the whole evidence placed on record very minutely: To prove its case the prosecution has relied upon ocular evidence, motive, and medical evidence. I would analyse all the pieces of evidence separately. First of all I take up the medical evidence which consists upon the evidence of P.W.4., Dr. Ijaz Hussain Awan according to whom the deceased received five injuries. Out of which injury No,1 was exit wound. While examining the rest of the injuries the doctor opined that blackening around all the injuries was present. He further observed that duration between the injuries and death was within one hour. During the cross-examination he admitted that he had not mentioned in the postmortem examination report that last-worn clothes of the deceased had holes, corresponding to the injuries. He further admitted that blackening can occur if the shot is fired from distance of 6 to 10 feet. According to the prosecution version Naseer appellant fired at the deceased from the distance of 4 karams while Abdullah accused fired at him from the distance of 5 karams (as is indicated in the site-plan Exh.P.C.) which means the deceased was fired at from the distance of 22 to 27 feet. It is of common knowledge that blackening around the injuries cannot occur from such distance. I have further noticed that according to the prosecution the deceased was done to death in the presence of the eyewitnesses but it seems from the record that no effort was made to save the life of the deceased though according to the doctor he did not die instantly after receiving the injuries and duration of injuries and death was within one hour which shows that possibly it was an unseen occurrence.
Another factor which goes against the prosecution is that while conducting postmortem examination the concerned doctor Cid not observe that last-worn clothes of the deceased had any corresponding holes to the injuries. So this fact also casts aspertions against the prosecution version. On the basis of said reasoning I can safely hold hat A the medical evidence failed to corroborate the ocular account.
13. Now I take up the ocular version which consists upon the evidence of P.W.5 Muhammad Yousaf and Khan P.W.7. While examining their evidence it has straightaway been observed that neither in the F.I.R. Nor in the entire of their evidence the source of any light for identification of the appellants was Mentioned. According to the calendar of year, 1995, the night of occurrence was 30th of "Shawala"as such there was no possibility of moon-light on the night of occurrence. At this stage it would be relevant to refer to the evidence of the patwari who appeared as P.W.3. He categorically admitted that during the spot inspection he did not see any electric pole or any electric bulb at the place of occurrence.
14. The occurrence had taken place at Dera of Mansha which is situated miles away from the houses of deceased and the eye-witnesses. Their evidence regarding leaving from their chak to the fair and returning back to the Dera i,e, place of occurrence is full of contradictions. The natural witnesses which could have been the inhabitants of the Dera in which the occurrence took place had not come forward to support the prosecution case. It is not the case of the prosecution that said Dera was abandoned or that eye-witnesses were sitting there in the absence of the hosts, as such said eye-witnesses can be easily termed as chance witnesses. The story narrated by the eyewitnesses that they were having a chat at the said Dera and at 9-30 p.m. All of them went out jointly to ease themselves in the fields does not appeal to the reasons. It is also not understandable that when the occurrence was being committed at a far-flung area from the residence of the deceased how the appellants could know about their programme and presence at the place of occurrence and it is also not believable that after having selected the dark and odd hours of night for this purpose, why did they expose themselves while launching attack at the deceased after raising Lalkara. During the entire evidence the eye-witnesses did not mention the source of light in which they identified the accused/appellants.
15. As far as the contention of the learned State counsel regarding the promptness of the F.I.R. Is concerned it is observed that according to the prosecution the occurrence took place at 9-30 p.m.
But the F.I.R. Was lodged at 12-30 a.m. i,e, with the delay of three hours though the distance between the place of occurrence and police station is just 4 kilometer. This fact coupled with the statement of P.W.7 who admitted that F.I.R. Was recorded at 3 a.m. Rebuts the claim of the promptitude of the F.I.R. Apart from said facts both the eye-witnesses are related to the deceased and according to the prosecution itself they had enmity with Naseer accused who allegedly had illicit relations with the sister of Yousaf P.W. And for this reason she was also murdered four/five years ago. Evidence of the interested witness is not getting support from any ether independent source as no recovery was effected from the appellants and during the investigation they were not found guilty, which fact was supported by C.W.1. And C.W.2. Who are both D.S.Ps. The motive part of the story also does not advance the case of the prosecution as it was fairly old matter and even otherwise if alleged motive is believed then the complainant party was supposed to take revenge from Naseer Ahmadwho had illicit relations with the sister of P.W.S. Muhammad Yousaf. Motive regarding civil dispute was not proved at all.
16. Analysing of the prosecution evidence from all angles I have come to the conclusion that the prosecution had failed to prove its case against the appellants beyond any shadow of doubt and even otherwise relying on 2005 YLR 2220 which says that error in acquittal is better than to err in conviction. Hence the appeal filed by the appellants is accepted and the judgment, dated 13-7- 1998 passed by Sessions Judge, Sahiwal, whereby the appellants were convicted and sentenced as mentioned above is set aside. Naseer appellant is already on bail. His bail bonds stand discharged.
Abdullah appellant is behind the bars, he shall be released forthwith from jail if not required to be detained in any other case. The revision petition filed by the complainant Muhammad Yousaf for the above said reasons having no merit is dismissed.