Through the instant appeal Hakim .Ali son of Akbar Ali appellant, who, alongwith four others namely Ramzan, Ayyub Jaffar Ali and Mst. Khurshid Bibi, faced trial in case FIR No, 193, registered at Police Station Malka Hans, on 10.6.2004, for offences under Sections 302/364/320/324/109/148/149 PPC, before the learned Additional Sessions Judge. Pakpattan, who vide judgment dated 1.6.2006, while acquitting Mst. Khurshid Bibi and Ayub, convicted the appellant under Section 302(b) PPC and sentenced him to imprisonment for life with fine of Rs, 1,00,000/- or in default of payment of fine six months'. R.I. It is pertinent to mention here that Jaffar and Ramzan had expired during trial and the remaining accused namely Amjad, Afzal and Aslam who could not be apprehended, were declared proclaimed offenders.
2. Brief facts of the case as narrated in FIR Ex. PG are that on the day of occurrence i,e, on 10.6.2004 at 10.30 a.m. after appearing in the Court at Pakpattan Muhammad Siddique-complainant went to Chak No, 32/SP while his son Mustafa went to Pull Bunga. where Amjad. Afzal sons of Jaffar, Ramzan son of Yaqoob alongwith a brown car, which was being driven by Ramzan, were standing there.
Within the view of Muhammad Ali son of Aziz. the accused took Mustafa in the said car and brought him to Chak No, 32/SP in front of their house. The complainant and Muhammad Aslam son of Ali Ahmad, were present in their shops. They saw that Amjad armed with .12 bore gun, Hakim Ali armed with hatchet, while Afzal and Aslam armed with rifles, came out of the house of Amjad. Amjad and others pulled out Mustafa from the said car, his both hands were time. Meanwhile, Mst. Khurshid Bibi raised Lalkara that Mustafa be taught a lesson for beating her. Thereupon Hakam Ali gave hatchet blow from its wrong side, which hit Mustafa on his shoulder and back._ Afzal caused blows with butt of his rifle to Mustafa and dragged him. Thereafter Amjad caused two fires with his .12 bore gun, which landed on the right leg of Mustafa. Afzal had snatched .12 bore gun from Amjad and caused two fire shots upon Mustafa, which hit him on his left leg. Legs of Mustafa had fractured and resultantly he had become unconscious. Hakam Ali gave two hatchet blows which hit Mustafa on his shoulder and right leg. Thereafter Hakam All had gone, then Amjad armed with .12 bore double barrel gun, Afzal and Aslam armed with rifles, while going from the spot, Zulfiqar came across them, who said the accused that they had not done well, thereupon Afzal gave a straight fire on Zulfiqar, which hit him on his left leg. While Arshad Ali son of the complainant was coming there, all the accused made firing upon him with intention to kill him but luckily he rescued himself.
All the accused fled away from the spot while boarding in the car. The injured were shifted to Hospital but 'Mustafa succumbed to the injuries. It is also mentioned in Ex. PG that Ayyub of Yaqoob had provided the weapons to all the accused. It is alleged in Ex. PG that on the previous night of occurrence at 9.00 p.m. Mst. Khurshid Bibi, Jaffar alias Rafique, Amjad, Afzal were present in the house and Jaffar and Mst. Khurshid Bibi asked their sons that Mustafa and Arshad be done to death, therefore, Amjad, Afzal, Ramzan, Hakam Ali and Aslam in furtherance of their common intention committed the murder of Mustafa.
3. The motive behind the occurrence was that about nine months ago, sons of the complainant had injured Mst. Khurshid Bibi and for the grudge all the accused on the instigation of Jaffar and Mst. Khurshid Bibi had committed the murder of Mustafa.
4. After registration of formal FIR, the investigation of the case was taken over by Bashir Ahmad, SI/PW-7. He proceeded to the Rural Health Centre, Malka Hans, took over the dead body, prepared injury statements Ex. PC, and inquest reports Ex. PB. Thereafter he proceeded to the place of occurrence, where he prepared rough site-plan and secured the blood stained earth from .the spot vide memo Ex. PJ. He after arresting the accused, doing the necessary formalities and completion of investigation, sent up the accused to face trial.
5. At the trial, the prosecution in order to prove its case produced 7 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Ex. PX and that of Serologist Ex. PL closed its case. In his statement recorded under Section 342 Cr.P.C. The appellant pleaded his innocence and false implication. However, the appellant did not appear as witness under Section 340(2) Cr.P.C. but Iftikhar Ahmad Khan, DSP, was produced as DW-1. After conclusion of trial the appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant in support of this appeal submits that there is conflict in between ocular account and the medical evidence. Firstly he has referred to the FIR lodged by Muhammad Siddique father of Mustafa deceased, wherein it is stated that Hakam Ali appellant gave two hatchet blows with its wrong side on the shoulder and on his back; that while appearing as PW-5 Muhammad Siddique stated that Hakam Ali gave two hatchet blows, which landed on the neck and shoulder of the deceased; that both the injuries are not available in the post-mortem examination report, that Muhammad Saddique/PW-5 stated before the trial Court that thereafter Hakam Ali gave two injuries on the left leg of Mustafa deceased and other two injuries-on his right leg but according to medical evidence all these four injuries are not available on the legs of the deceased; that there is an injury on the back of the deceased but the same is not attributed to any of the accused; that dishonest improvements were made by the two eye-witnesses; that according to FIR Zulfiqar/PW-6 did not see the occurrence and this fact has been proved, by Ghulam; Mustafa, Draftsman/PW-2. Learned counsel then refers to the statement of Bashir Ahmad, SI/PW-7, where in the stated that "It is correct that according to my investigation and observation Zulfiqar All PW was not eye-witnesses and he had not seen the accused persons causing injuries to Ghulam Mustafa deceased"; that according to investigation of Rana Iftikhar, Inspector (Investigation) and Naseer Zia Ghumman, Inspector/SHO, P.S. (Pakpattan, (which was entrusted to them on the application of the complainant) the appellant alongwitli two others was found to be innocent as they were not present at the spot; that no recovery was effected at the instance of the appellant; that he has no relations with his co-accused; that he was falsely implicated in this case; and that in these circumstances he is entitled to acquittal.
7. On the other hand, learned Deputy prosecutor General submits that it is a case of promptly lodged FIR; that it is a day light occurrence; that it is not a case of mis-identification, that date, time and place are proved; that PW-5 and PW-6 have attributed specific injuries to the appellant; that ocular account is corroborated by the medical evidence. However, he concedes that while conducting and preparing post-mortem examination report the Doctor had not mentioned the weapon of offence used for causing the injuries to the deceased; and that opinion of the Investigating Officer is not binding upon the Courts. He supports the impugned judgment.
8. I have heard the learned counsel for the parties at length and scanned the entire record of the case. The occurrence in this case had taken place on 10.6.2004 at 10.30 a.m. matter was reported to the Police Station through written complaint Ex. PG at 12.00 (Noon) and the formal FIR Ex. PG/1 was registered at 12.15 p.m. The distance between the Police Station and the place of occurrence is 5 Km. In all there were eight accused namely Mst. Khurshid Bibi, Ayyub, Afzal, Amjad, Aslam, Jaffar, Ramzan and Hakam Ali, Mst. Khurshid Bibi and Ayyub have been acquitted by the learned trial Court; Razman and Jaffar died during trial; Afzal, Amjad and Aslam were declared proclaimed offenders, while Hakam Ali appellant was convicted and sentenced. Deceased in this case is Mustafa son of Muhammad Siddique complainant and the injured is Zulfiqar, who were examined as PW-5 and PW-6 respectively. Muhammad Aslam, Muhammad Sadaq, Muhammad Ali, Younas and Arshad Ahmad PWs were given up by the prosecution. No recovery was effected at the instance of the appellant. Post-mortem was conducted by Dr. Muhammad Siddique/PW-1 on 10.6.2004. According to post-mortem examination report, the doctor found seven injuries on the person of the deceased, Motive behind the present occurrence was that nine months prior to the present occurrence sons of the complainant had injured Mst. Khurshid Bibi. As far as the appellant is concerned, he has no relationship with acquitted or absconded accused, so he cannot be connected with the motive.
9. According of FIR, role of the appellant is that no Lalkara of Mst. Khurshid Bibi, Hakam Ali-appellant gave hatchet blows; which hit on the shoulder and back of the deceased, while Afzal gave butt blows of his rifle on the back of the deceased while dragging him; then Amjad fired two shots with his .12 bore gun, which landed on the right leg of Mustafa-deceased; and Afzal fired two shots on the left leg of the deceased, which resulted into fracture of both the legs. Thereafter Hakam Ali gave hatchet blow which- hit on the left leg of Mustafa; he again caused injury on the right leg of Mustafa and then went away from the spot. Muhammad Siddique, while appearing before the trial Court as PW-5, stated that "Mst. Khurshid Bibi accused raised La/kara that Mustafa be done to death, then Hakam Ali accused gave two hatchet blows landed upon his neck and shoulder. (I may state here that according to post-mortem examination report there was no injury of hatchet either-on the neck or shoulder of the deceased). Amjad accused (since proclaimed offender) gave fire shot upon right knee joint of Mustafa. Afzal accused (since proclaimed offender) snatched the gun from Amjad and gave two fire shots upon the left leg of Mustafa deceased. Then Hakam Ali accused again gave two hatchet blows for its wrong side on the right leg of mustafa. He also gave two hatchet blows on the person of Mustafa on his left leg; same was also of wrong side of hatchet." According to statement of PW-5 Hakam Ali caused six injuries with hatchet on the person of the deceased, while according to Doctor/PW-1 there are, in all, seven injuries on the person of the deceased. According to Doctor, Injuries No 1 to 3 were caused by a firearm but to the extent of causing of remaining injuries he did not state a single word. From the perusal of the above said injuries attributed to Hakam Ali-appellant in the FIR and before the trial Court, it reveals that the same, are not only in contradiction with each other but also contradictory with the post-mortem examination report of the deceased. No recovery of weapon was also effected at the instance of the appellant. He was declared innocent by the three Investigating Officers. In support thereof Iftikhar Ahmad Khan DSP was also produced as DW-1. In his first version before the trial Court the appellant has taken the stance of his innocence, being not present at the spot and plea of alibi.
Two eye- witnesses namely Muhammad Siddique, father of the deceased and Zulfigar, brother-in- law ,(Salla) of the deceased, were produced. According to FIR and statement of PW-5, Zulfiqar came at the spot after the deceased had received injuries and was lying on the ground. In the instant case statement of Bashir Ahmad, SI, is very important. The relevant portions of his statement are being reproduced hereunder.
It is correct that according to my investigation and observation Zulfiqar Ali PW was not eye-witness and he had not seen the accused persons causing injuries to Ghulam Mustafa deceased The investigation of this case was entrusted to Rana Iftikhar Inspector Investigation under the orders of learned ASJ, Pakpattan, on the application of complainant Muhammad Siddique. During both the aforesaid investigations it transpired that Hakam Ali, Ramzan and Ayyub accused were not present even near the place of occurrence at the time of occurrence."
Although opinion of the police is not binding upon the Courts regarding the innocence of the accused but in such like cases the said opinion becomes relevant for the just decision of the case.
Consequently, cumulative effect of the above said discussion is that I am of the considered opinion that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. Thus, while extending benefit of doubt in favour of the appellant, his appeal is accepted and the conviction and sentence awarded to him is set aside. He shall be released from Jail forthwith, if not required in any other case.
10. It may also be noted here that any observation made in this judgment would not affect the case of the prosecution during trial of proclaimed offenders in the instant case.