' ABDUS SATTAR ASGHAR, J.---This single judgment shall dispose of Criminal Appeal No,9 of 2004/BWP (Abdul Hameed and 2 others v. The State) filed against conviction and Criminal Revision No,18 of 2004/BWP (Muhammad Ameer v. Abdul Hameed and 3 others) filed by complainant for enhancement of sentences both arising out of the same judgment dated 6-1- 2004 passed by learned Additional Sessions Judge, Bahawalnagar, in case F.I.R. No,6 of 2001, dated 8-1-2001, registered under section 302/34, P.P.C. With Police Station Mandi Sadiq Ganj, District Bahawalnagar whereby appellants, namely, Abdul Hameed, Muhammad Irshad and Allah Ditta were convicted under section 302/34, P.P.C. And each one of them was sentenced to suffer life imprisonment with fine of Rs,50,000 and in default of payment of fine to further undergo six months'
R.I. The fine, after recovery, was ordered to be given to the legal heirs of the deceased as compensation. They were also extended benefit of section 382-B, Cr.P.C.
2. Epitome of the prosecution case lodged by Muhammad Ameer complainant is that on 8-1-2001, at about 3-30 p.m. He along with his sons Muhammad Ismail, Muhammad Lashkir and nephew Muhammad Shahid were proceeding home on bicycle; that he along with Muhammad Ismail were riding one bicycle whereas Muhammad Lashkir and Muhammad Shahid were riding the other bicycle; that when they reached in the area of Mauza Kahan Singh Khurkan within the area of Police Station Mandi Sadiq Ganj, the above named accused along with their co-accused all armed with firearm weapons in furtherance of their common intention committed Qatl-e-amd of Muhammad Ismail son of Muhammad Amir.
3. After completion of investigation, challan was submitted. The appellants were charge sheeted, to which, they pleaded not guilty and claimed to be tried.
4. To discharge the burden of proof, the prosecution examined as many as 10 witnesses in all including Muhammad Amir complainant/eye witness (P.W.2), Muhammad Shahid eye-witness (P.W.3) and Dr. Muhammad Shareef (P.W.6) who conducted postmortem examination on the dead body of Muhammad Ismail and submitted postmortem examination report (Exh.PH) along with the diagrams (Exh.PH/1) and (Exh.PH/2) drafted and signed by him.
5. On the other hand, the appellants in their statements recorded under section 342, Cr.P.C. Denied the allegations while pleading their innocence and further contended that the complainant party is notorious criminal family of the area having enmity within and outside the area and that they have been falsely implicated with malice in this case due to their close relationship with Haji Allah Dad.
They also expressed their ignorance as regards the alleged recovery of weapon of offence. The appellants, however, neither deposed under section 340(2), Cr.P.C. Nor produced any evidence in defence. Thereafter, the learned trial Court convicted and sentenced the appellants as mentioned above.
6. Muhammad Amir complainant has filed above referred criminal revision on the ground that keeping in view the consistent trustworthy and free of discrepancies ocular account corroborated by medical evidence and recoveries, prosecution has proved its case beyond any shadow of doubt besides establishing alleged motive, therefore, reasons recorded by the learned trial Court for lesser punishment are neither lawful nor sustainable
7. I have given patient hearing to learned counsel for the appellants as well as learned Deputy Prosecutor-General and learned counsel for the complainant. Record is carefully perused with their able assistance.
8. As per F.I.R., attributions against the accused are that accused Allah Ditta fired a shot with pistol .12 bore upon Muhammad Ismail, which hit him on the left side of the chest, who fell down on the ground; that Muhammad Irshad fired a shot with pistol upon Muhammad Ismail, which hit him on the head and Abdul Hameed fired a shot which hit Muhammad Ismail on the left arm.
9. Muhammad Amir (P.W.2) has reiterated the prosecution version as setup by him in his application (Exh.PA) on the basis whereof F.I.R. (Exh.PA/1) was lodged. Despite lengthy cross- examination nothing material elicited in favour of the defence.
10. Muhammad Shahid (P.W.3) another eye-witness deposed that about two years ago he along with Muhammad Amir, Muhammad Lashkir and Muhammad Ismail (deceased) was returning home from the Hospital Mandi Sadiq Ganj after visiting his sister Bukhtar Bibi, when reached near village Kahan Singh Khurkan, suddenly the accused Allah Ditta armed with pistol, Abdul Hameed armed with pistol, Muhammad Irshad armed with pistol, Mushtaq Ahmed armed with gun and Muhammad Sharif intercepted them; that Allah Ditta accused raised lalkara to take revenge of the murder of Allah Bakhsh from Muhammad Ismail; that Mushtaq and Sharif raised lalkara that Ismail be fired at. Allah Ditta accused fired with his pistol in the chest of Muhammad Ismail, who fell down; that Muhammad Irshad fired the pistol shot which hit on the head of Muhammad Ismail and the shot fired by Abdul. Hameed hit on the arm of Ismail; that all the five accused are present in the court; that accused threatened them not to come forwarded and fled away from the place of occurrence. Despite lengthy cross-examination from the defence side no discrepancy could be surfaced as regards nomination of the accused with particular offence weapons and attributions of causing firearm injuries to Muhammad Ismail as alleged by the complainant. Muhammad Amir complainant (P.W.2) and Muhammad Shahid (P.W.3) have furnished plausible and probable reasons of their presence at the time and place of occurrence, which could not be shattered by defence side during cross-examination upon them. The testimonies being inline and corroborative to each other on vital dimensions of the prosecution case make them confidence inspiring and reliable.
11. The injuries attributed to all the three appellants in the manner mentioned above are also corroborated through the medical evidence in shape of statement of Dr. Muhammad Sharif (P.W.6), who conducted the postmortem examination on the dead body of Muhammad Ismail on 9-1-2001 at 10-00 a.m. And recorded the following injuries with his opinion:-- INJURIES
(1) There were four wounds on head.
1-a A lacerated wound on oxipit of head measuring 4 cm x 3 cm exposing the bone.
1-b Two parraral lacerated wounds in the middle of head measuring '2 cm X 2 cm each exposing bone. These injuries were caused by blunt weapon.
1-c A lacerated wound with inverted margin on right side of head measuring 2 cm X 1 cm with intact skin folded in the wound.
1-d Small rounded wounds on right tamporal region and upper part of right cheek with inverted margins, 2 small pallets were recovered from this wound.
' Injuries No,1-c and 1-d were caused by firearm weapon.
2. An elipitical wound on front of left chest at the level of 7th, 8th and 9th ribs in midline measuring 7 cm x 4 cm with inverted margins. This was an entry wound of firearm weapon (pallets) penetrated to left lung, heart and stomach. 7th rib was fractured. A large number of small pallets were recovered from lung, heart and stomach.
3. Four small rounded wounds with black margins on dorsum of right hand and right forearm, near wrist joint measuring 1 mm(r) these were entry wounds of firearm pellets. Three pellets were recovered from this wound.
CRANIUM AND SPINAL CORD: ' Scalp, skull and vertebrae: already detailed above. Membrane, brain and spinal cord were intact and healthy.
' THORAX ' All the organs were healthy except lung, heart and ribs detailed above.
' ABDOMEN ' Stomach, ruptured and some jelly like brown coloured material found in the ruptured stomach.
Small intestine and other organs were healthy, pertinium and diaphragm were injured.
OPINION ' I had conducted the postmortem of dead body. All the injuries on the person of Muhammad Ismail deceased were ante-mortem. Injuries Nos.1-a and 1-b were caused by blunt weapon, while Injuries Nos.1-c, 1-d, 2, 3 were caused with firearm weapon. Injury No,2 was sufficient to cause death in ordinary course of nature which caused hemorrhage shock and immediate death. The probable time between injuries and the death were immediate rather instantaneous and between death and postmortem was within 3 to 24 hours. According to police report death had occurred at 3-30 p.m. On 8-1-2001 and was caused by firearm weapon. After the postmortem examination, I handed over the dead body, postmortem papers, last worn clothes and one sealed vial containing pallets and six carbon copies of postmortem report to Muhammad Idrees 531/C.
Postmortem report is Exh. PH is in my hand and it bears my signatures. Exh. PH/1 and Exh. PH/2 are the diagrams which were also prepared by me. I had also attested Exh.PH/3 the inquest report of the deceased and Exh. PH/4 injuries statement of the deceased as well.
' He was cross-examined by the defence side but nothing material could be attained despite little effort.
12. Appraisal and comparative analysis of ocular account and medical evidence transpires that injury attributed to Allah Ditta appellant is recorded in the postmortem report as Injury No, 1 . The injury attributed to Muhammad Irshad is recorded in postmortem examination report as Injuries Nos.1-c and 1-d. The injury attributed to Abdul Hameed is recorded in the postmortem report as Injury No,3, therefore, medical evidence produced by the prosecution in shape of Dr. Muhammad Sharif (P.W.6) and postmortem examination report (Exh.PH) with diagrams (Exh.PH/1 and Exh.PH/2) has sufficiently corroborated the ocular account.
13. It is important to mention that during the investigation of this case Investigating Officer has recovered only one pistol 12 bore as offence weapon from Abdul Hameed accused. Prior to the said recovery of weapon at the time of his first visit at the place of occurrence he had recovered only one empty of .12 bore, which later on was referred to Forensic Science Laboratory along with pistol .12 bore recovered from Abdul Hameed and was declared fired from the pistol .12 bore recovered from Abdul Hameed accused. No offence weapon was recovered from Allah Ditta and Muhammad Irshad accused during the course of investigation. However, since the ocular account in the shape of testimonies of both the eye-witnesses i,e, complainant (P.W.2) and Muhammad Shahid (P.W.3), eye-witnesses bearing intrinsic value and inherent worth have been sufficiently corroborated by the medical evidence, therefore, failure of the Investigating Officer regarding effecting any recovery of offence weapon from Allah Ditta and Muhammad Irshad accused is not fatal to the prosecution case.
14. Careful appraisal of the medical evidence brought on record in this case, however, makes me to follow principle of sifting the grain from the chaff in order to ascertain the role of each of the above named three appellants convicted by the learned trial Court.
15. In this regard it is vehemently argued by learned counsel for the appellants that all the firearm injuries available on the dead body of Muhammad Ismail could be safely caused in result of one fire shot of .12 bore empty whereof was recovered at the spot by the Investigating Officer during his first visit to the place of occurrence which has been matched with the pistol recovered from Abdul Hameed accused. In my considered view learned counsel for the appellants is misconceived. Both the eye-witnesses have attributed a single fire shot to Abdul Hameed and that too on the right forearm near the wrist which is reported as injury No,3 in the postmortem examination report. The said Injury No,3 is declared as the four small rounded entry wounds each measuring 1 MM out of which three pellets were recovered. This injury is located on the dorsum of right hand near wrist joint. I have no doubt in my mind that a shot fired at the right hand-wrist joint cannot cause other reported injuries on the chest or head of the deceased particularly attributed to accused Allah Ditta and Muhammad lrshad with separate fire shots. Rather careful perusal of the diagram Exh.PH/1 and Exh.PH/2 makes me to formulate the opinion that Injury No,3 caused by four pellets each measuring 1 MM can safely be result of shots fired with pistol .12 bore on the chest or on the head of the deceased.
16. Implication of Abdul Hameed accused, therefore, appears to be result of widening the net to involve maximum members of the family in our peculiar rural fashion: In this regard statement under section 342, Cr.P.C. Of the accused Abdul Hameed needs to be referred. An extract thereof is reproduced as under:-- "I am innocent. I have no motive to murder the deceased. Neither I was accused in the previous case registered by Allah Dad etc. Against the complainant party nor there is enmity between the complainant party and Allah Dad etc. Because his son was murdered previously, so furthermore, I have no connection whatsoever with Allah Dad nor I had any close relationship with Allah Dad etc. Actually, the complainant party involved me just to widen the net."
' Implication of the accused Abdul Hameed in this case becomes highly doubtful in the absence of any previous animosity with the complainant party. Therefore, I have no hesitation to extend benefit of doubt in his favour.
17. Arraignment of the accused Allah Ditta and Muhammad lrshad in this case, however, is not shrouded in mystery. Testimonies of both the eye-witnesses, namely, Amir Ali complainant (P.W.2) and Muhammad Shahid (P.W.3) cannot be discarded merely on the ground that they are not being believed regarding implication of the accused Abdul Hameed given benefit of doubt. Needless to mention that principle of FALSUS IN UNO FALSUS IN OMNIBUS is not followed in the administration of criminal justice system in Pakistan. Rather golden principle of separating the grain from the chaff is being observed in the subcontinent for the last more than 100 years for the safe administration of criminal justice keeping in view the local rivalries of our rural society.
18. To sum up I have no doubt in my mind that prosecution has sufficiently proved the charges against the accused Allah Ditta and Irshad Ahmed by producing reliable and confidence inspiring testimonies of eye-witnesses P.W.2 and P.W.3 bearing intrinsic value and inherent worth also corroborated by the medical evidence. In this way prosecution has successfully brought the guilt home to accused Allah Ditta and Muhammad Irshad with regard to wilful murder of Muhammad Ismail son of Muhammad Amir.
19. Motive alleged by the prosecution is that above named accused wilfully murdered Muhammad Ismail to take revenge of the murder of Allah Bakhsh son of Allah Dad accused wherein Muhammad Ismail was also one of the accused in this case but acquitted by the Court. Said Allah Dad facing the charge under section 109, P.P.C. Was declared innocent during police investigation and also acquitted by the learned trial Court given benefit of doubt. Prosecution has not established any close relationship of the accused Allah Ditta and Muhammad lrshad with the said Allah Dad, therefore, plea of motive is not proved against them. Certainly prosecution is not bound to establish motive in every case, however once it has alleged a particular motive but failed to establish the same, it is the prosecution to suffer the consequence and not the defence. Therefore, quantum of punishment i,e,, life imprisonment for both the accused Allah Ditta and Muhammad lrshad as judged by learned trial Court need not to be interfered with in the extenuating circumstances of this case.
20. In the light of above discussion, reasons and findings, appeal is partially accepted to the extent of Abdul Hameed accused and he is acquitted of the charge given benefit of doubt, however, it is dismissed to the extent of appellants Allah Ditta and Muhammad Irshad.
21. Appellant Abdul Hameed is in the jail. He is released forthwith if not required in any other case.
22. As a sequel to the above, the criminal revision lodged by the complainant Muhammad Amir for enhancement of the sentences being devoid of any force is also dismissed.