This appeal is directed against the judgment dated 06.02.2001 passed by the learned Additional Sessions Judge, Sahiwal, whereby he convicted the appellant Talib Hussain under Section 308 PPC and sentenced him to undergo R.I for fourteen years, whereas his co-accused Sher Muhammad was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life with direction to pay fine of Rs, 50,000/-, in default whereof to undergo S.I. for six months. Case against remaining accused namely Bahawal Sher, Sarwar and Muhammad Saeed was not proved; therefore, they were acquitted of the charge. Benefit of Section, 382-B, Cr.P.C. was, however, extended to the appellant-accused in case FIR No, 165 dated 16.05.1999, under sections 302/148/149 PPC registered at Police Station, Harappa District Sahiwal.
2. Brief facts of the case, as given in FIR (Exh.P.C), recorded on the statement of Mst. Sattan Bibi, complainant, is that she is resident of Chak Ahmad Baghila and her husband Haji Muhammad Sadan was murdered by Sher Muhammad, who had come to home about two months prior after acquittal. She had two sons aged about 12/13 years and the other is about 8 years and four daughters. On 16.05.1999, she, along with Umar Draz, Rab Nawaz and Raj 'Bibi, residents of the village, were sitting on the cot out of their house while her son Sajjad Hussain was coming from the shop after purchasing household articles and when he was at a distance of 15/20 karms from his home, Talib son of Bashir, armed with Carbine, Sher Muhammad son of Mehmood, armed with double barrel .12 bore gun, Sarwar son of Fazil, accused, armed with .7 M.M rifle, Bahawal Sher accused, armed with 12 bore gun (single barrel) and Muhammad Saeed, accused, armed with Carbine, emerged from front side. Sarwar, Bahawal Sher and Muhammad Saeed raised lalkara to Talib accused that Sajjad should not let alive, upon which, Talib accused, and Sher Muhammad accused, made one fire each with their respective weapons. The fire of Talib (appellant) hit Sajjad Hussain on his head while that of Sher Muhammad, accused, hit him on right side of his chest and Sajjad Hussain fell down. She, Umer Draz, Rab Nawaz and Raj Bibi rushed toward the spot when Sher Muhammad etc. threatened that whosoever came forward near them, would be treated like Sajjad Hussain, upon which, they did not go ahead and accused persons fled away along with their weapons by making fires in the air. When they reached near Sajjad Hussain, he had expired due to the said fire-arm injuries caused by the accused persons with their respective weapons. The occurrence was witnessed by her, Rab Nawaz and Mst. Raj Bibi.
3. Motive behind the occurrence was that Sher Muhammad accused had already murdered her husband Muhammad Sadan upon the quarrel of Street water, hence he was already inimical towards the complainant party, due to which, Sher Muhammad etc, accused persons, committed the murder of her son Sajjad Hussain.
4. During the course of investigation the local police found the accused Talib Hussain guilty and he was sent to judicial lock up whereas his co-accused Sher Muhammad, Sarwar, Bahawal Sher and Muhammad Saeed, accused persons, were found innocent and accordingly the challan was submitted against the accused persons for trial. Charge was framed against them, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution produced as many as nine Prosecution witnesses during the trial. The appellant/accused and his co-accused were examined under Section 342 Cr.P.C. and the appellant Sher Muhammad in answer to Question No, 7 as to why this case against him and why the PWs have deposed against him", stated as under:-- "This case has been registered against me and my three cousins Bahawal Sher, Ghulam Sarwar and Muhammad Saeed due to enmity. Prior to this case, a murder case of Sadan, the husband of Mst. Sattan complainant was registered against me, wherein I was challaned and ultimately I was acquitted by the Hon'ble High Court. I was acquitted by the High Court about two months prior to this occurrence. The complainant had a grievance of my acquittal, therefore, she has falsely involved me and my three cousins, namely Bahawal Sher, Sarwar and Saeed only to redress her grievance and to extinguish the fire of her revenge. All the PWs are not only interested witnesses but also inimical towards me and my three cousins Bahawal Sher, Sarwar and Muhammad Saeed, therefore, all the. PWs have deposed falsely due to enmity and mala fide."
Similarly, the appellant Talib Hussain, in answer to Question No, 9 as to why this case against him and why the PWs have deposed against him", stated as under: "I am innocent. The PWs have deposed falsely against me due to their relationship inter-se. The PWs are under the influence of the complainant and as such they have involved me falsely at the instance of the complainant."
6. The learned trial Court after conclusion of trial passed the above said conviction and sentence, which is being assailed through this appeal.
7. While assailing the judgment of conviction the learned counsel for the appellant has contended that the appellant has falsely been roped in this case; that no identification parade was conducted to identify the real culprits; that delay in lodging the FIR remains unexplained; that there is no evidence against the appellant whereby he can be connected with the commission of crime; and that nothing was recovered from the appellant; that the post-mortem Exh.PB does not prove the time of occurrence because as per statement of the doctor, the deceased had taken his last meal at the sun set. He argued that in the month of May, when the occurrence took place, normally, the sun sets at 7-00 p.m while the Medical Officer Dr. Tahir Mehmood has stated that the meal is digested within three to six hours but as per post-mortem Exh.PB, the stomach of the deceased was found healthy containing 3-4 ounces fluid material. Apart from this, the learned counsel for the appellant has submitted that Sher Muhammad, Sarwar, Bahawal Sher and Muhammad Saeed accused persons were declared innocent by the police during investigation while only Talib Hussain appellant was found guilty by the I.O. but he has not mentioned any justification that how and under what circumstances, he declared innocent the above mentioned four persons. He further argued that when PW-8 in his cross-examination deposed that Talib Hussain, accused, had confessed his guilty before him, so, he held him guilty on 19.7.1999 who also led to the recovery of Carbine P.3 later on which was taken into possession vide memo Exh.PF. The learned counsel for the appellant further argued that in case the recovery of carbine was effected from Talib Hussain appellant on 26.7.1999, then how the accused was held guilty by the I.0 prior to it on 19.7.1999 which seems to be mala fide on the part of the I.O. He further argued that it was not possible that no person appeared on behalf of Talib Hussain appellant to prove his innocence during the investigation but so many persons were produced before the I.0 but he did not record this fact in the police diaries recorded by him by dishonest means. The learned counsel for the appellant argued that some children were playing hide and seek in the evening of occurrence, where, the deceased and Talib Hussain, appellant, were also playing, so, some unknown person had murdered the deceased. He further argued that it was a blind murder which was not witnessed by any body. It is argued by the learned defence counsel that there are glaring discrepancies in the statements of the prosecution witnesses which makes the case of prosecution doubtful. It has lastly been argued by the learned counsel for the appellant that the learned trial Court on the same set of evidence acquitted co-accused of the appellant and he has been convicted and sentenced to imprisonment which is against the natural justice and the appellant is liable to be acquitted of the charge.
8. Conversely, learned Deputy Prosecutor General for the State, while vehemently opposing this appeal contends that it is a case of daylight occurrence; that the appellant was attributed specific role of causing injuries on the body of the deceased, which proved fatal; that the weapon of offence recovered from the appellant was found wedded with the empties, recovered at the instance of the appellant. It is further argued that the appellant was involved directly into the commission of murder of Sajjad Hussain, deceased, by causing fire-arm injuries to him which resulted in the death of the deceased; therefore, the appellant does not deserve any lenience, as such, his appeal is liable to be dismissed.
9. I have heard the learned counsel for the appellant, who was appointed at State expense, and the learned DPG for the State, at length, have given anxious consideration to their arguments and have also scanned the evidence on record with their able assistance.
10.PW-3, the complainant is main witness in this case. In her testimony she admitted the previous enmity between her and both of the co-accused. Her testimony is not only discrepant; it also suffers from lack of corroboration from the circumstantial evidence. She maintained that Talib accused fired with his carbine which hit the deceased on his left eye, nose and head, which are Injuries No, 3 to 6. According to the medical evidence these were contusions and could not be said to have been caused with fire-arm. She admitted in her cross-examination that -Talib accused had no relationship with the remaining co-accused. The motive was said to be that Talib accused had enmity with the Moeens of the complainant. However, he is alleged to have joined hands with the other co-accused.
11.Regarding Sher Muhammad, PW-3 maintained that he fired at the deceased which had hit him on the right side of the chest. She along with Rab Nawaz and Raj Bibi rushed towards Sajjad Hussain. The accused persons threatened them of dire consequence and escaped along with their weapons. In her cross-examination she admitted that she felt aggrieved on acquittal of Sher Muhammad appellant in the murder case of her husband. Whereas during investigation no recoveries of weapon of offence was effected from Sher Muhammad appellant, number of villagers had joined the investigation and gave statements with regard to the innocence of Sher Muhammad appellant and on basis thereof he was declared innocent by the Investigating Officer, PW-10.
12. Regarding recovery of carbine from Talib appellant it was admitted by PW-4 who deposed that the weapon of offence and cartridges were returned by the Forensic Science Laboratory under objection that the cartridges were old which were returned and replaced with other cartridges after about 10 days.
13.Regarding the lodging of FIR, PW-3 maintained that the FIR was recorded at the police station whereas PW-6 who had also narrated the ocular account maintained that the FIR was recorded at the place of occurrence.
14. For the reasons recorded above, it appears that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, therefore by giving benefit of doubt the appeal is allowed and both the appellants are acquitted of the charge. Sher Muhammad Appellant is in Jail, he be released forthwith if not required in any other case. Talib appellant is on bail, he is discharged from his bail bonds.