' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,380 of 2002 filed by Abid Hussain, who along with Nazar. Hussain, Muhammad Yousaf and Zubair, faced trial in case F.I.R. No,284, registered at Police Station Pindi Bhatian, on 7-6-2001, for offences under sections 302/34/109, P.P.C., before learned Additional Sessions Judge-II, Hafizabad, who after conclusion of trial, vide his judgment dated 28-2-2002, while acquitting rest of the accused, convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,1,00,000 or in default six months' S.I.
2. Murder Reference No,276 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Briefly, the facts of the case as narrated in F.I.R. Exh.P.J./1, are that on 6-6-2001 at about 8-00 p.m.
The complainant and his brother Muhammad Riaz went to Chak Mahlu to visit their sister Khursid Bibi, where Abid Hussain was already present to negotiate the compromise of murder case.
Muhammad Walayat, brother-in-law of the complainant, and Nazar Muhammad were also present at that time. During negotiation, which continued till 12-30 a.m. Between Abid Hussain and Riaz, Abid Hussain asked Riaz to come outside the house for some talk. Abid Hussain took the rifle of Riaz and both went outside the house in a field about 30/32 Karams away. While for 15/20 minutes they did not return, the complainant party having some suspicions came out of the house and in the light of electric bulb, which was on at the outer door of the house of Muhammad Walayat, they saw Abid Hussain fired at Riaz, which hit on his right shoulder. Riaz fell down and succumbed to the injury. Abid Hussain fled away from the spot by joining Muhammad Yousaf, Nazar and Zubair who were sitting in a car which was already present at metalled road.
4. The motive as narrated in the F.I.R. Was that 9/10 months prior to the occurrence Mazhar Hussain, Phuphizad of Abid Hussain, was murdered and case was registered against Saif, Maqsood, Nousher and Muhammad Riaz. For that revenge Abid Hussain at the instance of Yousaf, Nazar and Zubair committed the murder of Riaz.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Malik S.-I./P.W.12, who conducted thorough investigation, arrested the accused and after effecting recovery of 8 mm rifle at the instance of Abid Hussain-accused, sent them to face trial.
6. At the trial, the prosecution in order to prove its case produced 12 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.P., Serologist Exh.P.Q. And that of Forensic Science Laboratory Exh.P.k. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the learned trial Court, while acquitting Nazar Hussain, Muhammad Yousaf and Zubair, convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that both the witnesses were admittedly inimical towards the appellant and were chance witnesses; that the witnesses have miserably failed to prove their presence at the time of occurrence; that the ocular account is neither supported by the circumstances of the case nor by the medical evidence; that the evidence of recovery was a piece of padding on the part of the police officer; and that the prosecution story was revolting to common sense.
8. On the other hand, the learned counsel appearing on behalf of the complainant submits that the witnesses are natural; that the deceased and the P. Ws. Had gathered in the house of Muhammad Walayat P.W.9 for the purpose to effect compromise of murder case of Mazhar Hussain, which was pending in the Court of Additional Sessions Judge; that it was not unnatural that during conversation Riaz-deceased and Abid-appellant went outside the house; that it was also natural that Riaz handed over his rifle to the appellant while going outside; that it was too natural for the remaining P. Ws. To go after the deceased and the appellant as they do not return for about 15/20 minutes; that they could see the occurrence in the light of electric bulb, which was on, at the wall of outer side of the house of Walayat; that even otherwise it was moonlit night; that both the P.W.s. Have given consistent account of the occurrence and their statements do not suffer from any material discrepancies; that gun was recovered at the instance of the appellant in the presence of both the eyewitnesses, who had gone along with S.H.O. For effecting recovery; that in this case the recovery of rifle was significant because it belonged to the deceased; that the medical evidence corroborates the ocular account, as the deceased lost his life due to fire-arm injury and the seat of the injury is also the same as mentioned in the post-mortem report; that three exit wounds were possible as the bullet after hitting bone could divide in many portions and relies upon page 287 of the Medical Jurisprudence (5th Edition) by Parikh, wherein it is observed that "A single entrance (of rifle fire-arm injury) injury may result in multiple exit wound (1) when a soft nosed or unjacketed bullet splits into several parts (2) when a high velocity bullet resulting in comminuted fracture imparts sufficient energy to the fractured parts (secondary missiles) to cause corresponding exit wound and (3) in cases of tandem bullets, following different trajectories in the body and giving rise to separate exit wound"; that the appellant has acted in a cruel manner and does not deserve any leniency; and that no reason existed to substitute the real killer with the appellant.
9. The Additional Prosecutor General adopts the line of arguments advanced by the learned counsel for the complainant.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
11. The occurrence took place during mid of the night in a field, which was at a distance of about 30 Karams from the house of Muhammad Walayat P.W.9 son of Jalla. Neither the complainant nor Riaz-deceased nor appellant were residents of Chak Mahlu, where the occurrence took place. They, according to prosecution story, assembled in the, house of P.W.9 Muhammad Walayat for negotiation about likely compromise relating to murder of Mazhar Hussain. Admittedly Mazhar Hussain was murdered 9/10 months prior to this occurrence. Saif Ullah son of complainant/P.W.10 and his three brothers Maqsood, Nousher and Riaz-deceased were accused in the case. Riaz, who was already involved in murder case of Ghazanfar alias Ghanu and was fugitive from law, had left his village and was living in hide outs. According to complainant, he met Riaz at Miani Khhoi at Dera, whose owner was not known to the complainant. The complainant further stated that Riaz was summoned through his sister Khurshid Bibi at Miani Khhoi. However, the complainant, as noted above, did not know the name of the owner of the Dera nor he had any previous acquaintance with the owner. It was further stated by the complainant that he and Riaz deceased met at Dera situated at Miani Khhoi at about 5/6-00 p.m. And thereafter they proceeded to Chak Mahlu, where P.W.9 lived. They reached the house of P.W.9 at 8-00 p.m., where Abid Hussain was already present.
Abid Hussain appellant is Phuphizad of Muzhar Hussain deceased in the earlier murder case. He lived at a distance of 25/30 miles away from the house of P.W.9. P.W.9 admitted that Abid Hussain had never visited his house prior to this occurrence. He also admitted that on the fateful day there was no occasion of assembly of Brotheri nor any person from the village was associated during negotiation about compromise. He further admitted that Abid Hussain-appellant had not participated in any type of reconciliation proceeding previously and that age of Abid was 25 years and his father was alive. Similarly the complainant admitted that Abidappellant was not cited as P.W. In the murder case of Mazhar Hussain. Neither he was legal heir nor Wali of Mazhar Hussain nor had been the Lumberdar, Councillor or Headman of the village. It is also in evidence that while Riaz deceased was absconding the rest of the accused were in jail and their bail application was dismissed after murder of Riaz. All these facts denote that story of negotiation about compromise was cooked up to show the presence of Abid Hussain in the house of P.W.9 prior to the occurrence.
The later part of the story that conversation continued till 12-30 a.m. (night) and thereafter on asking of Abid Hussain, Riaz not only left the house along with Abid Hussain-appellant but he also handed over his rifle to Abid Hussain, is totally unbelievable, as Riaz who was already involved in criminal case and was fugitive from law would not be a fool to hand over his weapon to his enemy.
Similarly both the P.Ws., who were related to the deceased would not allow their brother, firstly to go out of the house alone along with enemy and secondly they would never allow him to hand over his gun to his opponent. The final part of the story that both the P.Ws. Waited for 15/20 minutes and thereafter they became suspicious and went outside the house and saw in the light of electric bulb and in moonlit that Abid Hussain fired at. Riazdeceased, is also ridiculous and opposed to common sense, as after taking out his enemy away from his relatives in a field the assailant would not wait for 15/20 minutes before causing fire in order to ensure that the witnesses would arrive there.
12. The occurrence took place at 1-00 a.m. And the matter was reported to the police at 8-05 a.m.
After seven hours of the occurrence while the Police Station was at a distance of 4-1/2 miles and one could reach the Police Station within. 1-1/2 hours on foot easily. The explanation offered by the complainant is baseless, as admittedly the appellant never fired at P.Ws. And according to prosecution case, the acquitted accused were waiting in a car, the appellant joined them and all of them immediately left. In order to justify the delay in lodging the F.I.R. The complainant told many lies like that on his hue and cry many persons were attracted to the spot but the complainant had no conversation with the persons who had assembled there and none of the witnesses or residents of the locality went to the Police Station for reporting the matter throughout the whole night.
Similarly P.W.9 stated that though residents of the villages possessed motorcycles and tractors yet none from his village owned any motorcycle or tractor. After admitting that metalled road existed between his village to Pindi Bhatian he refused to admit that wagons and Tongas plied on the metalled road. Most importantly even after the delay of seven hours the matter was not reported at the Police Station and the statement of the complainant was recorded by Muhammad Malik, S.- I./P.W.12 at Chowk Pindi Bhatian where he was per chance present along with other police officials.
Inherent doubt surrounds the F.I.Rs, which were not recorded at the Police Station that they were recorded at the spot after due deliberations.
13. The ocular account is belied by the medical evidence, as according to Doctor Asghar Ali P. W.6 "the pellets after entering the body and the locale of injury No,1 in an enmass form made this separate exit wound after spreading into the body and it was cartridge fire of .12 bore gun". The learned counsel for the complainant has relied upon the observation made by the Author of Parikh Text Book of Medical Jurisprudence, which has already been reproduced in his arguments. We are afraid that the observations of the Author are not relevant in the instant case for the reasons (i) the Author while talking about multiple exit wounds of a single injury caused by rifle was talking about the possibilities and not general rule (ii) the entry wound was of the dimension of 4 cm x 4 cm which could not be caused by a bullet, and (iii) the Doctor, who had collected two foreign metallic bodies from the body of the deceased, stated in unequivocal terms that the pellets entered into the body in an enmas form and existed through three separate wounds.
14. The alleged recovery of weapon at the instance of appellant is of no consequence for the reason that no empty was recovered from the E spot and no independent witness was associated with the recovery proceedings.
15. The prosecution evidence relating to motive is worthy of no credence as against the appellant, as neither the appellant was a witness in the murder case of Mazhar Hussain nor he was among the legal heirs of Mazhar Hussain. Furthermore, three of the four accused were in jail and the proceedings were pending before the learned trial Court.
16. The upshot of the whole discussion is that in our opinion it was an unwitnessed occurrence and the whole story was cooked up after knowing about the murder of Riaz. Resultantly, we allow this appeal, set aside the impugned judgment and acquit the appellant of all the charges. He would be released forthwith, if not required in any other case.
17. As a consequence of above discussion, Murder Reference is answered in the negative and the sentence of death is not confirmed.