SARDAR MUHAMMAD SHAMIM KHAN, J.---Asim Fayyaz, appellant, through the present appeal (Criminal A. No,155 of 1999), has challenged the conviction and sentence, passed against him in a case bearing F.I.R. No,189 dated 2-6-1996 for the offence under sections 302 and 34, P.P.C., registered at Police Station Saddar Mianchannu, District Khanewal. He was tried by learned Additional Sessions Judge, Khanewal, who vide his judgment dated 11-3-1999 sentenced the appellant under section 302(b) of P.P.C. and convicted him to life imprisonment with fine of Rs,50,000 as compensation to the legal heirs of the deceased Zahoor Ahmad and in default to undergo six months' S.I. with advantage of section 382-B of Cr.P.C.
2. The prosecution story, as stated by complainant Nusrat (P.W.1) is that he was resident of Chak No,43/15-L and cultivated land situated in Square No,9 measuring 121/2 acres owned by Ali Gohar son of Muhammad Sadique as tenant where he had made a bheni. His son Zahoor Ahmad aged 24/25 years had kept goats and sheep there. On the fateful night, the complainant along with his son Zahoor Ahmad, nephew Munir Ahmad son of Noor Ahmad and brother Ghulam Muhammad alias Goma were sleeping as guard for the cattle head behind the bheni. At 11-00 pm, they woke up on the barking of dogs and saw accused Asim Fayyaz while armed with gun, accused Amjad Fayyaz empty handed, both sons of Ghulam Muhammad were standing near the cot of his son Zahoor Ahmad. The complainant warned the accused but within their view the accused Asim Fayyaz made two fires at his son Zahoor Ahmad simultaneously which hit him, on his head. The complainant and his companions identified the accused Asim Fayyaz and Amjad Fayyaz in moon light. They tried to catch hold of the accused on which the accused Asim Fayyaz raised Lalkara that if any body dared to come forward he would also be treated alike. The accused ran away towards chak side along with their respective weapons while firing in the air. The complainant along with his companions noticed that his son had died due to the injuries. The matter was reported to the police and present case was registered accordingly.
3. Motive behind the occurrence was that the accused had a suspicion that Munir Ahmad, nephew of the complainant, had illicit relations with the wife of the accused Amjad Fayyaz and due to this grudge both the accused with their common intention had committed murder of his son Zahoor Ahmad.
4. After completion of investigation, challan was submitted against the appellant. Charge was framed, to which, they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 9 witnesses in all and also tendered documentary evidence.
5. P. W.1 Nusrat narrated the ocular account of the occurrence as mentioned above and testified the contents of F.I.R. (Exh.PA) which was recorded on his statement.
6. P.W.2 Ghulam Muhammad alias Goma, deposed the ocular account of the occurrence and corroborated the statement of P.W.1 Nusrat, complainant.
7. P.W.3 Muhammad Hussain, Patwari deposed that he prepared rough sketch of the place of occurrence and thereafter prepared site plans Exh.PF, Exh.PF/1 and Exh.PF/2.
8. P.W.4 Muhammad Amir identified the dead body of Zahoor deceased at the time of his postmortem.
9. P. W.5 Muhammad Saleem, C/1628 deposed that he transmitted a sealed parcel said to contain blood stained earth to the Office of Chemical Examiner, Lahore.
10.P.W.6 Ghulam Nabi, C1873 had escorted the dead body of Zahoor deceased to the Civil Hospital, Mianchannu.
11.P.W.7 Muhammad Yousuf, HC/1597 deposed that he kept one sealed parcel said to contain blood stained earth and other articles of case property in maalkhana for safe custody.
12.P.W.8 Dr. Muhammad Yousuf conducted postmortem the dead body of Zahoor Ahmad and observed the examination on the dead body Zahoor Ahmad and observed the Following injuries on his person:- - "(1) A tire arm lacerated wound measuring 1-1/2 cm x 2 cm x deep going when felt by entering the probe. This had averted margins i.e, exit wound situated on top of head 15 cm behind the nasal bridge.
(2) A fire-arm lacerated wound measuring 5 cm x 1 /12 cm and deep going, This had everted margins. This wound was situated on left side of head 10 cm behind left ear. This was an exit wound and part of brain matter was coming out of this wound.
(3)A fire-arm lacerated wound 1-1/4 cm x 1-1/2 cm with everted margins and situated between wound Nos.1 and 2.
' This was an exit wound.
(4) This was a fire-arm lacerated wound measuring 1-1/2 cm x 1-1/4 cm on left side of head 3 cm behind wound No,3. It had inverted and blackened margins i.e, an entry wound. This was also deep going wound.
(5) A fire-arm lacerated wound measuring 1-1/2 x 1-1/2 cm going deeply with blackened and inverted margins. This wound was present 2.5 cm behind wound No,4 on the back part of skull bone about 20 cm on the back of left ear.
(6) A fire-arm lacerated wound of 1-1/2 cm x 1/2 cm with blackened and inverted margins on left side of back of head and 2 cm behind wound No,5.
(7) This was the biggest wound. It was a fire-arm wound with crushed margins, measuring 10 cm x 4 cm deep going into brain cavity. A part of brain matter was coming out of this wound. When the wound was dissected and explored a plastic was of cartridge was found on 2 inches depth of this wound. This was preserved sealed and handed over to police. This wound was present between wound Nos.3 and 7 on the back of head.
(8) A black mark of wound measuring 2 cm x 1/2 cm x superficial. This was a black bruise and was situated on left side of face, 3 cm lateral to the outer angle of left eye on left side of face. On palpation matellic pieces were recovered."
13.P.W.9 Mazhar Abbas, Inspector had conducted the investigation of this case. However, Munir Ahmad P.W. was given up being unnecessary witness.
14.The statement of the appellant/accused -- under section 342, Cr.P.C. was recorded wherein they denied the allegation levelled against them and professed their innocence. In answer to question, why this case against you and why the P. Ws. have deposed against you, the appellant Asim Fayyaz stated as under:-- "I am innocent. One Rafique and lnayat Ullah, Tulla by caste, are residents of the Chak No,43/15-L.
One Badroo purchased one acre of land from aforementioned Rafique and Inayat. The above transaction was pre-empted by one Shabbir. Ghulam Muhammad alias Goma P.W. and Nusrat P.W. along with Noor Muhammad paid a sum of Rs, 21,000 to Shabbir so that he may deposit the 1/3rd amount of the pre-emption suit and for other expenses. There was understanding between Ghulam Muhammad alias Goma and Nusrat P.W. that Shabir after getting a successful decree in his favour would transfer the land to the complainant and Ghulam alias Goma P.W. The pre- emption suit of Shabbir was dismissed and appeal against the same is pending. Aforementioned Badroo and his sons threatened the complainant Ghulam alias Goma P.W. Noor Muhammad and Zahoor Ahmad deceased for playing mischief of getting preemption suit instituted against them.
Because of the above dispute Badroo and his sons had injured by way of murderous assault upon Ghulam Muhammad alias Goma P.W. who remained admitted in the hospital. Rafique and Liaqat had also given beating to Ghulam alias Goma P.W. Aforementioned Rafique and Liaqat are cousins of Badroo alias Pehiwan. P.W. Ghulam alias Goma had also. moved an application against Rafique and Liaqat for registration of a criminal case against them. Because of the above enmity the complainant party and the deceased was on the risk of their life at their hands. There were other enemies also of the deceased and the complainant party. One Mst. Khanum is the sister of Munir P.W. Intizar Kanjan was caught red handed with Mst. Khanun while in objectionable position nearly one and a half month before the present murder. Because of the above incident Ghulam Muhammad alias Goma P.W. and Munir Ahmad P.W. along with others had made firing upon aforementioned Intizar. Because of the above incident Intizar mounted an attack on the house of Munir Ahmad P.W. and made firing. Intizar was also made an accused in the present case and was taken into custody but later on with mala fide and ulterior motive police dishonestly released him.
Zahoor Ahmad, deceased died in an un-attended occurrence. The accused was not known. Rab Nawaz tracker was called for the identification of the footprints of the assailant."
15.The co-accused Amjad Fayyaz adopted the statement of Asim Fayyaz, appellant/accused in reply to a question as to why this case against him. The accused in their defence did not produce any evidence. They also did not opt to get record their statements under section 340(2) of Cr.P.C.
16.After hearing learned counsel for the parties and going through the record, learned trial court convicted and sentenced the appellant Asim Fayyaz, as mentioned above, whereas, co-accused Amjad Fayyaz was acquitted of the charge, preferred against him by the prosicution . Hence this appeal.
17. Learned counsel for the appellant submits that motive of the prosecution story was that the accused had suspicion that Munir Ahmad (given up P.W,) was having illicit relations with wife of acquitted co-accused Amjad Fayyaz. At the time of occurrence said Munir Ahmad was allegedly available at the place of occurrence there and the appellant's first target would have been Munir Ahmad as motive was alleged against him and there was no justification to commit the murder of Zahoor Ahmad, deceased. It has further been submitted that although subsequently prosecution improved their statement regarding the motive that an altercation took place between Zahoor Ahmad, deceased and Asim Fayyaz, appellant prior to this occurrence regarding illicit relations of Munir Ahmad, P.W. with the wife of Amjad Fayyaz but this portion of motive was confronted with the previous statements of the P. Ws. So, it cannot be used against the appellant. It is further contended by learned counsel for the appellant that according to the prosecution version F.I.R.
(Exh.PA) was registered at police station but, according to the evidence of complainant Nusrat, P.W.1, his statement was recorded at the spot and I.O. also obtained his thumb impression on said statement at the spot. So, prosecution has not proved the lodging of F.I.R. as stated by them making the whole prosecution as doubtful; that ocular account of this case has been furnished by P.W.1 Nusrat, who is father of Zahoor Ahmad, deceased and Ghulam Muhammad, P.W.2, who is real uncle of Zahoor Ahmad, deceased; that Nusrat P.W.1 and Ghulam Muhammad, P.W.2 are chance witnesses; that occurrence took place at night time and according to the prosecution story they identified the appellant in moon lit night but serious question of identification is involved in this situation. Reliance has been placed on Muhammad Rahim v. The State 1973 PCr.LJ 904), Muhammad Arshad v. The State (PLD 1995 SC 475) and Bashir alias Bashira and another v. The State and others (1995 SCM R 276). Learned counsel for the appellant further submits that there is conflict between ocular account and medical evidence as the appellant allegedly fired at the deceased at the time when he was sleeping and his face was visible but all of injuries on the person of the deceased were on the back side of his head which cannot be sustained in sleeping condition; that allegedly the appellant fired two shots at the deceased simultaneously from one point but doctor observed blackening and burning in respect of injuries Nos. 4 to 6 and in respect of other injuries no blackening and burning was found which means that fires at the deceased were made from different distances; that the police also arrested one Intizar in this case as suspect who was later on released by the police which means that occurrence was unseen; that although gun was recovered from the possession of the appellant but as no empty was secured by the police from the place of occurrence, so, the recovery of gun in the absence of report of Forensic Science Laboratory is inconsequential. It has lastly been argued that although the case was not proved against the appellant but he has served out almost all of his sentence and his unexpired portion of sentence remains only four months and two days. He prayed for acquittal of the appellant.
18.Learned counsel for the complainant and learned D.P.-G. have contended that occurrence took place at 11-00 p.m., whereas, the matter was reported to the police at 12-30 p.m. So, such promptly lodged F.I.R. eliminates all chances of deliberation and consultation; that although motive is not attributed to the appellant in the F.I.R. but subsequently at the time of evidence P.W.1 Nusrat and P. W.2 Ghulam Muhammad had narrated the motive of occurrence against the appellant; that the appellant is nominated in the F.I.R. and according to the evidence he fired at the deceased with his gun and committed the murder of Zahoor Ahmad, deceased; that although both the eye- witnesses are relatives of the deceased but they have no enmity to falsely involve the appellant in this case; that both the eye-witnesses had furnished explanation for their presence at the spot at the time of occurrence; that although occurrence took place at night time but prosecution had given the source of identification; that ocular account furnished by the prosecution had been corroborated by the medical evidence; that recovery of gun from the possession of the appellant is also corroborative piece of evidence against him; that prosecution has proved its case beyond reasonable doubt against the appellant. So, they have prayed for dismissal of the appeal of the appellant.
19.I have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.
20.This occurrence took place on 1-6-1996 at 11-00 p.m., whereas, Nusrat P.W.1 lodged F.I.R. (Exh.PA) on 2-6-1996 at 12-30 a.m. at police station after about 1-1/2 hours of the occurrence. Apparently, this F.I.R. was lodged promptly by Nusrat, complainant/P.W.1 but perusal of evidence of complainant Nusrat reveals that I.O. recorded his statement at the spot and thumb impression was also obtained on the said statement at the spot. So, it is very much clear that F.I.R. was not lodged at 12-30 a.m. at police station as alleged by the prosecution rather it was fabricated afterwards at the spot after deliberations and consultations. In this situation, the veracity of F.I.R. becomes highly doubtful. keeping in view the fact that occurrence took place at night time.
21.Motive of this occurrence as per F.I.R., was that accused entertained suspicion that Munir Ahmad, nephew of the complainant was carrying on illicit relations with wife of Amjad Fayyaz and due to this grudge the accused persons committed the murder of Zahoor Ahmad. According to the prosecution own story, Munir Ahmad nephew of the complainant, was also seeping at the place of occurrence along with the deceased and other P.Ws. and had the appellant wanted to commit the murder due to the aforementioned motive then their first target would have been said Munir Ahmad, who was also available at the spot and there was no justification for the appellant to commit the murder of Zahoor Ahmad, who had no concern with the motive as alleged by the prosecution. In order to prove the motive prosecution produced P.W.1 Nusrat and P.W.2 Ghulam Muhammad. P.W.1 Nusrat in addition to the motive stated by him in the F.I.R., improved the motive and stated that the appellant Asim Fayyaz made complaint to him and his son Zahoor Ahmad, deceased regarding the illicit relations of Munir Ahmad with wife of Amjad Fayyaz and due to this reason an altercation took place between Zahoor Ahmad, deceased and Asim Fayyaz, appellants.
This portion of motive stated by P.W.1, was confronted with F.I.R. (Exh.PA), where it was not so recorded. So, this improved part of the confront motive cannot be used against Asim Fayyaz, appellant. Mazhar Abbas, Inspector/Investigating Officer appeared as P.W.9 and according to his evidence Asim Fayyaz appellant who was employed in Pak Army was, according to the record, on his duty at the time of alleged exchange of altercation between Zahoor Ahmad, deceased and the appellant. In this way, the prosecution has failed to prove the motive against the appellant.
22. Now coming to the ocular account of the prosecution story. It has been furnished by P.W.1.
Nusrat and P.W.2 Ghulam Muhammad. P.W.1 Nusrat is father and P.W.2 Ghulam Muhammad is real uncle of the deceased Zahoor Ahmad. According to the prosecution own story, Zahoor Ahmad, deceased kept goats and sheep and at the time of occurrence Zahoor Ahmad, deceased was sleeping in order to keep guard on his cattle heads where occurrence took place. The house of Nusrat, P.W.1 is situated at a distance of two karams from the place of occurrence whereas Ghulam Muhammad, P.W.2 resides in another separate house. There was no reason for P.W.1 Nusrat and P.W.2 Ghulam Muhammad to sleep in the cattle heads of Zahoor Ahmad, deceased at the time of occurrence. They have not given any plausible explanation that why they were sleeping in the cattle heads of Zahoor Ahmad at that time. According to both the eye-witnesses, they identified the appellant in moon lit night. According to the site plan, Exh.PF, prepared by Patwari, the P.Ws. were at a distance of six karams from the appellant when they witnessed the occurrence. The identification of the appellant from the distance of 32-1/2 feet casts serious doubt regarding the identification of appellant by the P.Ws. keeping in view the case laws, referred to by learned counsel for the appellant. According to the prosecution own evidence, there was complete grown up "Keekar" tree near the place of occurrence which has been shown at point No, 6 of the site plan, Exh.PF, prepared by Patwari. In the presence of full grown up "Keekar" tree near the place of occurrence the identification of the appellant in the moon light becomes more doubtful.
23. Another important aspect of the case is that P. W.1 Nusrat Ghulam Muhammad P.W.2, and given up P.W. Munir Ahmad, were sleeping in the cattle head of Zahoor Ahmad, deceased. At the time of occurrence at the barking of dogs all of them got up whereas deceased Zahoor Ahmad kept on sleeping. According to the evidence of Nusrat, P.W.1, they had not covered their faces when they were sleeping at the place of occurrence including Zahoor Ahmad, deceased and their faces were opened. The allegation against the appellant is that he fired two shots at Zahoor Ahmad, deceased on his head when he was sleeping. In such situation, deceased must have received injuries on the front side of his head: The ocular account given by the prosecution is falsified by the medical evidence as doctor observed all injuries on the back side of head of the deceased which could not be sustained in sleeping position.
24.Another import contradiction between the ocular account and medical evidence is that according to the prosecution witnesses Asim Fayyaz, appellant made both fires simultaneously at the deceased from a distance of one karam. Perusal of evidence of Dr. Muhammad Yousuf, P.W.8, reveals that he observed blackening in respect of Injuries Nos.4 to 6, whereas blackening was not observed by the said doctor in respect of injuries Nos.7 and 8 which is clear indicative of the fact that fires at the deceased were made from different distances. According to the opinion of doctor, the injuries on the person of the deceased might be the result of single fire. This opinion of the doctor is also contrary to the version of the prosecution story.
25.Perusal of evidence of P.W. 1/complainant Nusrat reveals that one Intizar who had enmity with the complainant party was also arrested by the police in this case. The complainant also admitted stated in his evidence that he do not know that for how many days that Intizar remained under the custody of the police. The admission of the complainant regarding the arrest of Intizar clearly shows that it was an unseen occurrence and other persons were also arrested as suspects in this case. The complainant has also admitted his enmity with so many other persons during cross- examination including enmity of murder case and in such situation who committed the murder of Zahoor Ahmad is shrouded in mystery as the appellant had got no motive to commit his murder.
So, the prosecution has failed to prove the ocular account which is in conflict with medical evidence.
26.Lastly, coming to the recovery of double barrel gun (P7) from the possession of the appellant which was taken into possession vide memo. Exh. PE witnessed by P.W.2, Ghulam Muhammad, it is not corroborative piece of evidence against the appellant as no empty was secured from the place of occurrence. So, there is no report of Forensic Science Laboratory in this regard.
27.The upshot of the above discussion is that prosecution has failed to prove its case beyond reasonable doubt against the appellant. So, I set aside the impugned judgment dated 11-3-1999, passed by learned Additional Sessions Judge, Khanewal and accept the Criminal Appeal No, 155 of 1999 and acquit the appellant Asim Fayyaz from the charges. The appellant Asim Fayyaz is on bail.
His bail bonds are cancelled and sureties are discharged.