' M. NAEEMULLAH KHAN SHERWANI, J.---Gulzar son of Rahim Dad was tried by a learned Additional Sessions Judge, at Kharian for the murder of Zulfiqar who by virtue of his judgment dated 27-7- 2002 found him guilty of the said charge, convicted him under section 309, read with section 311, P.P.C. And sentenced him to undergo rigorous imprisonment for fourteen years and to pay Rs,3,15,000 as Diyat to legal heirs of the deceased. He was further ordered to be kept in jail till full amount of Diyat is paid. He was given the benefit of section 382-B, Cr.P.C.
2. Gulzar, convict has approached this Court by filing the instant appeal to call in question conviction and sentence passed against him by the said learned Judge.
3. Prosecution story as revealed through contents of statement (Exh.P.B.) of Zulfiqar Ali son of Muhammad Rashid is the following: ' The event giving rise to the murder charge occurred on 31-12-2000 at about 1-00 p.m. In the area of Mir Puri Bazar Sarai Alamgir situate at a distance of about two furlongs from Police Station Sarai Alamgir, District Jhelum. Zulfiqar Ali deceased of this case purchased commodities/household articles it the company of Muhammad Rashid, his father and Afzaal his brother from Mir Puri Bazar Sarai Alamgir. Appellant carrying a pistol appeared at the spot all of a sudden and raised a Lalkara that he would teach a lesson to the deceased for having contracted marriage with Mst. Nasira.
Deceased apprehending danger to his life made an effort to flee away from the scene but appellant in the meanwhile fired a shot through his pistol striking on back of his chest. He made to more ineffective shots. Victim of assault was shifted to Civil Hospital, Sarai Alamgir by the aforementioned witnesses. Complaint (Exh.P.B.) was drawn up by Banaras Khan (P W.11) in Civil Hospital Sarai Alamgir at 1-30 p.m. Which was dispatched to the police station for formal registration of case against the appellant. Consequent upon receipt of complaint (Exh.P.B.) at the police station formal F.I.R. (Exh.P.B./1) was recorded by Mehdi Khan A.S.-I. (P.W. 4) at 1-45 p.m.
Without any addition or subtraction on his part.
4. Banaras Khan S.-I. (P.W.11) conducted investigation of the case. After receiving information of the occurrence he rushed to Civil Hospital, Sarai Alamgir and submitted an application (Exh.P. G.) to the medical officer for recording statement of the injured. The Doctor opined that the injured was fit to make his statement. Accordingly he recorded his statement (Exh.P.B.). Thereafter he proceeded to the spot and prepared rough site-plan of the place of occurrence. He collected bloodstained soil from the spot which was I .Ken into possession by him vide seizure memo. (Exh.P.C.). He received an information that the injured had expired. He again went to the hospital and prepared injury statement (Exh.P.K.), inquest report (Exh.P.1) and dispatched the dead body to the mortuary for autopsy purposes under the escort of Amjad and Riaz Constables. On 5-1-2001 he arrested the accused who on 7-1-2001 led to the recovery of Pistol (P.4) along with five bullets (P.5/1-5) which were taken into possession by him vide memo. (Exh.P.E.), duly attested by the witnesses. After completion of investigation challan against the accused was submitted.
5. The learned trial Judge after observing formalities framed charge against the accused. It was put to him to which he pleaded not guilty and claimed to be tried. Accordingly prosecution was directed to produce its evidence against the accused.
6. During trial prosecution a produced as many as twelve witnesses against the accused.
' Dr. Farooq Ahmad P.W.1 conducted autopsy on the dead body of Zulfiqar Ali and found one injury on his person. According to him death occurred due to shock and excessive haemorrhage, which was sufficient to cause death in the ordinary course of nature. He prepared post-mortem report (Exh. P. E.) and pictorial diagram Exh.P. E.1 of injuries.
' Muhammad Afzaal (P.W.6) and Muhammad Rashid (P.W.7 ) are eyewitnesses of the occurrence.
They fully supported the prosecution version. Tariq Mehmood (P.W.9) testified to the factum of recovery of pistol (P.4) at the instance of the appellant. The evidence of the remaining witnesses is of formal nature, so their statement do not require to be discussed in detail.
7. Statement of the accused was recorded under section 342, Cr.P.C. In order to provide him full opportunity to explain al the incriminating evidence or circumstances appearing against him on the surface of evidence. He denied correctness of the allegations and claimed his false involvement in the case due to false suspicion. He opted not to appear in witness-box under section 340(2), Cr.P.C. In disproof of accusations brought against him. Nasira Shaheen widow of Zulfiqar deceased appeared before the trial Court on 9-6-2000 and made a statement regarding her compromise with the accused.
8. The learned trial Court minutely attended to all items of evidence for and against the appellant and pronounced verdict of guilt against him leading to his conviction and sentence as aforementioned.
9. Learned counsel for the appellant in her arguments to this Court puts the matter like this. That F.I.R. Is a fabricated piece of evidence as its maker was not in a fit condition to make his statement.
It was manufactured by the complainant side in collaboration with the police as none knew about the actual offenders. Furthermore eye-witnesses were not available at the spot during the occurrence; that motive alleged by the prosecution is weak and could not prompt the appellant to kill Zulfiqar Ali deceased. Three pistol shots were allegedly made by the appellant but no empty could be secured by the police from the spot. Recovery of pistol (P.4) is inconsequential having not been sent to Forensic Science Laboratory for comparison purposes. Medical evidence does not support the prosecution version in any manner. Case is full of doubts which entitles him to acquittal.
10. Learned counsel for the State repels contentions raised by learned counsel for the appellant by submitting that it was a day time occurrence. Zulfiqar Ali victim of assault made statement (Exh.P.B.) before Banaras Khan (P.W.11) and thereafter passed away which can validly be treated as dying declaration. Eye-witnesses have supported the prosecution version.
11. I have consciously heard and soberly considered respective arguments of learned counsel for both the sides and have also looked into the matter with Hawk's eyes. Since it is a case of single accused, so I put my heart and soul together in appraisal of evidence for ascertaining truth behind the matter. Different pieces of evidence, like occult evidence, motive, recoveries; medical evidence and statement of the deceased (Exh.P.B.) on the basis of which F.I.R. Stood recorded, deserve severe criticism. It is clearly mentioned in statement (Exh.P.B.) that Zulfiqar Ali deceased was shifted to the hospital by Muhammad Afzaal (P.W.6) and Muhammad Rashid (P.W.7). Muhammad Afzaal happens to be real brother of the deceased. Muhammad Rashid (P.W.7) is his father. Zulfiqar Ali in an injured condition was received in R.H.C. Sarai Alamgir on 31-12-2000 at 1-10 p.m. He was examined by the Doctor. He observed following injuries on his person:-- ' A fire-arm entry wound 1 c.m. x 1 c.m. Margin inverted circular in shape, right lumber region 1.5 c.m.
From mid vertebral line. No blackening was present. Exit wound 1.5 c.m. x 1.5 c.m. With averted margin right side of abdomen 1/2 c.m. Below the coastal margin.
' A fire-arm wound of exit 1.5 c.m. x 1.5 c.m. Margin averted on right side of abdomen 5 c.m. Below coastal margin.
' Fresh bleeding from exit wound was noticed. Abdomen was distended. Pulse rate 110/m B.P.90/50 Mgh. This was dangerous to life. Probable duration of injuries was 1/2 to one hour. Zafarullah constable received carbon copy of the medico-legal report (Exh.P.L.) and reference letter from the Doctor. Weapon used for producing this wound was fire-arm according to the Doctor.
12. I have very carefully taken notice of all entries made by the Doctor in the medico-legal report and would like to jot down the same in seriatim. Name of relative or friend who conveyed Zulfiqar Ali to the hospital is not mentioned in the relevant column. Had Muhammad Afzaal (P.W.6) and Muhammad Rashid (P.W.7) shifted Zulfiqar in an injured condition to the hospital for his examination and management of injuries then it was imperative for the Doctor to record name of any of the two. Time of examination is also not mentioned. Doctor also did not mention in clear cut terms as to what was physical condition of the injured and that whether he could perform some volitional act or not. It is also not recorded that he was conscious, semi conscious or unconscious.
Simultaneous study of post-mortem report is also necessary for discovery of certain material facts.
Perusal of contents of postmortem report (Exh.P.A.) reveals that date of death is 31-12-2000 as per police papers. Time of death has not been furnished. Doctor who performed autopsy has also recorded two injuries one being the entry wound and other exit wound. No blackening was noticed by him. Abdominal walls were damaged. Peritoneum was damaged. Omentum was also damaged. Right kidney was perforated. All other organs were found healthy. Death had occurred due to excessive haemorrhage and shock resulting from injuries, which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death is about 9/10 hours. Time of death was never disclosed by Muhammad Afzaal (P.W.6) and Muhammad Rashid (P.W.7) or the Investigating Officer, which pushes this case into dark clouds.
Specific time of death ought to have been provided by the police or the witnesses. Time of death has also not been recorded by the Investigating Officer in Column No, 3 of the inquest report (Exh.
P.I.). Name of weapon is also not mentioned in Column No, 12 of the inquest report. Column No, 23 which is meant to indicate things found near the dead body is also blank. .List Of. Household commodities allegedly purchased by the deceased should have been mentioned in this column.
Doctor admitted during course of cross- examination that no relative or friend of the injured had accompanied him to the hospital. Blood was not transferred in the hospital. Doctor badly failed to give time on certificate relating to fitness of Zulfiqar Ali to make a statement. Application (Exh.P.G.) made by the Investigating Officer before the Doctor making a query about fitness of deceased to make a statement did not state that he remained available by the side of Zulfiqar Ali when his statement was being recorded. Had Doctor examined the injured at that time to determine his fitness to make a statement then his clinical findings should have been incorporated or stated.
Doctor was not made to attest complaint (Exh.P.B.). Two things become manifestly clear that eye- witnesses were neither present at the spot nor had taken the injured to the hospital they did not receive medico-legal report from the Doctor after the examination. Medico-legal report was received by Zafarullah constable. Had the witnesses been available at the spot during course of incident then their clothes should have been besmeared with blood. They should have poured water into his mouth or at least conversed with him to inquire about his condition. Throughout they failed to perform any act, which could have guaranteed their availability at the spot. Had they been available in the hospital when the Investigating Officer reached there then the F.I.R. Should have been recorded on the statement of any one of the two as they were the eye-witnesses. Neither the Investigating Officer nor the witnesses have assigned any special reason for not recording F.I.R. On the statement of father or brother of the deceased being eye-witnesses occurrence.
13. Opinion of the expert regarding a fact always requires to be narrowly examined and tasted by a Judge. Fire-arm wounds are considered to be very painful. The entry wound is located on the lumber region. Bullet penetrated into the body, perforated right kidney and then by damaging peritoneum and omentum made its way out of the exit wound. Kidney, peritoneum and omentum are highly vesicular organs. The victim was examined by the Doctor after some time of the occurrence. During this period considerable haemorrhage was bound to occur. Both the Doctor did not disclose as to what type of treatment was provided to him. A man suffering fire-arm wound gets maximum pain. He must be writhing in agony. After abrupt severe haemorrhage victim would jump into irreversible shock. Sedatives, analgesic and pain killing medicines were bound to be administered to the deceased. High potency injunctions like penicillin, gentacine, declaron, flagil arid high potency pain killer like sesegon, morphine along with sedatives like serinase injuctions are given to the victims of assault. In this case abdomen was distended meaning thereby that acute abdomen conditions were there. Due to excessive internal haemorrhage motility of intestines and ileus occur. Commulative effect of all these medicines would that the patient would be in extreme shock and drowsiness of a high order would develop rendering him incapable of performing volitional acts. The contents of post-mortem report do not disclose that any steps to enjoy control over haemorrhage were taken. The police allegedly started recording statement at 1-30, which was not got attested by the medical officer. For all these reasons I am constrained to hold that statement (Exh.P.B.) recorded at 1-30 p.m. Was fabricated much later after preparation of the alleged story. Additionally it may be seen that the entry wound was on the lumber region. The assailant while firing must be at his back, so there was no possibility of the victim of assault to have seen the appellant. Prosecution story appears to have been fabricated on the basis of guess, gossip, rumour and imagination. To me the story is not legitimate and all that has been alleged by the prosecution is a patent falsehood.
14. In my judgment none knew as to by whom the deceased was fired at. Occurrence took place in a most busy place but strangely enough not a single disinterested person was examined or cited as a witness by the prosecution. Where did the three empties go is also not known. Recovery of pistol (P.4) was also made from an open accessible place and was never dispatched to the office of Forensic Science Laboratory. Recovery in these circumstances, lends no support to the prosecution case. As principal evidence comprising of occult evidence and allied items of evidence and recovery fails, so evidence to prove motive need not be commented upon. Motive piece of evidence also inspires no confidence at all.
15. For all these reasons by accepting this appeal I quash conviction of the appellant and he is directed to be released from custody forthwith if not required to be detained in any other case.