' MUHAMMAD QASIM KHAN, J.---Karim Bakhsh accused/ appellant was tried by learned Additional Sessions Judge, Bahawalnagar in case F.I.R. No,161 under sections 342/302/34, P.P.C. Registered with Police Station Mandi Sadiq Gung and vide judgment dated 29-3-2006 he was convicted under section 302(b), P.P.C. And sentenced to death; further ordered to pay Rs,100,000 as compensation to be paid to the legal heirs of the deceased, which shall be recovered as arrears of land revenue, in case of non-realization to further undergo six months simple imprisonment. Criminal Appeal No,91 of 2006 has been filed by the convict/appellant challenging his abov.e conviction and sentence, whereas, the trial court has sent reference. Both these matters are being decided by this single judgment.
2. Imam Ali complainant P.W.5 reported the matter to Muhammad Arshad Nadeem S.-I./S.H.O.
P.W.13 on 28-10-2005 at about 8-30 a.m., to the effect that he had married his son Qasim Ali (deceased) with Mst. Muqadas daughter of Karim Bakhsh (appellant) and in WATTA Mst. Shumaila (daughter of the complainant) had been married with Manzoor Ahmad son of the appellant, but rukhsati had not taken place because of tender age of Mst. Shumaila. Two days before the occurrence, there occurred a quarrel between Qasim Ali son of complainant and Mst. Muqadas and Karim Bakhsh appellant took Mst. Muqadas to his house. On the fateful day at about 7-30 a.m.
Muhammad Nadim son of the complainant was going to drop Mst. Shumaila to school and when he was passing from in front of the house of the accused, Karim Bakhsh, Mst. Manzooran and Mst.
Muqadas came out of the house and they dragged. Mst. Shumaila inside the house by her hair and arms. Muhammad Nadim immediately rushed back to' house and told the incident to the complainant whereupon, he (the complainant) and Qasim Ali went to the house of Karim Bakhsh but the door was lock and Mst. Shumaila was weeping inside and Mst. Manzooran and Mst.
Muqadas were giving her fist and kick blows. The complainant raised cries, whereupon, Muhammad Shan and Muhammad Sarwar also came and they also entreated Karim Bakhsh from outside but he did not agree. He, however, suddenly got infuriated, opened the door and made two .12-bore gun fires hitting Qasim Ali on his right shoulder, right chest and left elbow and left arm, who succumbed to the injuries at the spot.
3. On the basis of above information laid by the complainant, formal F.I.R. Exh.PD was registered and the I.O. Proceeded to the place of occurrence along with other officials, 'inspected the dead body of deceased Qasim Ali, prepared injury statement Exh.PH, inquest report Exh. PI and sent the dead body through Khurshid Ahmad Constable for post mortem examination at RHC Mandi Sadiq Gung. The I.O. Prepared rough site plan of the occurrence Exh.PJ, took into possession blood stained earth from underneath the dead body and prepared memo Exh.PT. He also collected two empty cartridges P-5 and P-6 of .12-bore gun from the place of occurrence vide memo Exh.PG. Thereafter, the I.O. Went to the Hospital, where last worn clothes of the deceased Shirt P-1, Shalwar P-2 and Vest P-3 all blood stained were handed over to him and took the same into possession vide memo Exh. PA. He recorded statements of the witnesses under section 161, Cr.P.C. Karim Bakhsh accused in this case was arrested on 6-11-2005, whereas, Mst. Manzooran Bibi and Muqadas accused were arrested on 9-11-2005.
' During custody, Karim Bakhsh on 11-11-2005 led to the recovery of .12-bore gun from room of his house, secured vide memo Exh. PE. The accused also produced licence of the said weapon to the Investigating Officer. He prepared the rough site plan of the place of recovery Exh.PE/ 1. On completion of the investigation, challan was sent to court against all the three accused, to which they pleaded not guilty and claimed to be tried, whereupon, the prosecution led its evidence and accused were also examined under section 342, Cr.P.C. Ultimately on conclusion of the trial, Mst.
Manzooran and Mst. Muqadas were acquitted of the charge against them, whereas, Karim Bakhsh accused/ appellant was convicted and sentences, as detailed above.
4. In support of this appeal the learned counsel for the appellant has argued that the motive in this case does not appeal to reason because some time back Muhammad Qasim, of the appellant, was married with Mst. Muqadas Bibi, daughter of the appellant and Mst. Shumaila sister of the deceased and daughter of. Imam Ali married with Manzoor Ahmad, son of the appellant; no body wants to kill his own son-in-law, when there was no such type of dispute which had compelled a person to commit the murder. It has been argued that if Mst. Muqadas Bibi daughter of the appellant was living happily with the deceased Qasim Ali then why to make her widow by the appellant. It is contended that something has been concealed by the complainant party and the motive is mysterious, in this case which cannot be believed. It has been argued that P.W.5 Imam Ali is the real father of the deceased, Mst. Shumaila P.W.6 is real sister of the deceased, whereas, Muhammad Shan P.W.7 is brother in law of the complainant, therefore, these three persons are not only related to the deceased but they are also inimical towards the appellant. It has been vehemently contended that had the P.Ws. Been present at the place of occurrence at the relevant time they could have saved the deceased because the occurrence had not taken place all of a sudden. The learned counsel for the appellant argued that in the F.I.R. It is very much mentioned that firstly Mst. Shumaila was dragged to the house of the appellant and she was under attack, therefore, the P.Ws. And the deceased came there and incident took place. Therefore, if the P.Ws.
Were three in number then it was easy for them to have overpowered the appellant or at least to snatch weapon from him. It has been argued that presence of the P.Ws. Has not been established because the medical evidence does not corroborate the version of the P.Ws. According to the statement of the witnesses the deceased and the appellant were standing on same pedestal, whereas, doctor P. W.4 as categorically mentioned in the dimension of the injuries that tracks of Injury Nos. I and 3 were from up to downwards. It has been argued that it is a natural phenomenon that fire travels straight unless and until any substance on the way may cause any hurdle to it. The learned counsel for the appellant led us to the diagram of the injuries of the deceased Exh. PC and post mortem report Exh. PC/1 to contend that the injuries were caused on the right shoulder of the deceased and these injuries went downwards and made exit wound downwards the body. We have also seen Column No,18 of the inquest report against which the height of the deceased has been mentioned as 5 feet and 7 inches. We have also examined the identification slip of the appellant, wherein, his height has been mentioned as 5 feet and 6 inches. Therefore, we have observed that deceased as well as the appellant were of the same height and it is noted that place of deceased in the site plan had not been raised upon which the deceased was standing at the time of making of fires. It has been argued that had the P. Ws. Been present there then this contradiction would not have arisen in this case. It has been next contended that medical contradictions in this case cannot be reconciled by the prosecution and the doctor has to be taken as independent P.W. Who had no animosity with any of the parties and whatever was seen by him on the body of the deceased, he had brought it on the post mortem report; it has been argued that during cross-examination the doctor has admitted that injuries on the person of the deceased i.e, Injuries Nos.1, 2 and 3 were result of single shot of .12-bore gun and the assailant was on the right upper side of the deceased when fire was made. The learned counsel also drew our attention to unscalled site plan of the place of occurrence and also the scaled site plan and we have also seen the first inspection note of the place of the occurrence by using our powers under section 172, Cr.P.C. And it has been observed by us that deceased and the appellant were shown standing on equal pedestal and more so according to the site the appellant was inside the room, whereas, the deceased was present in the street immediate to the outer gate of the house of the appellant. The learned counsel has assailed the positive report of Forensic Science Laboratory about the weapon of offence, on the ground that two crime empties of 12-bore gun were taken allegedly into possession from the spot on 28-10-2005 and were sent to the office of. Chemical Examiner on 8-11- 2005 i.e, with a delay of ten days and gun allegedly recovered from the appellant on 11-11-2005 was sent to the office of Chemical Examiner on 9-12-2005 with a bad delay of twenty eight days. It has also been argued that licensed gun of the appellant was in fact taken into possession from the house of the appellant immediate after the occurrence; it was kept by the Investigating Officer and thereafter empties were prepared from it and on suitable dates these two parcels were sent to the office of Forensic Science Laboratory, Lahore and got positive reports in order to strengthen the prosecution case. The learned counsel for the appellant has contended that mere happening of the incident in front of the house of the appellant does not mean that the deceased was murdered by his father in law. According to the learned counsel, all these contradictions have made the prosecution case doubtful, therefore, by extending the benefit of doubt the appellant be acquitted.
5. On the other hand, learned D.D.P.-G. Assisted by learned counsel for the complainant opposed the appeal and contended that F.I.R. Had been lodged with promptness and it was a day light occurrence. The appellant is the sole perpetrator and it is not a case of substitution. It was argued that report of the Forensic Science Laboratory is positive. Merely on the basis of some technicalities or delayed deposit of the parcel in the office of the Forensic Science Laboratory, the credibility of the Forensic Science Laboratory report could not be shattered. It has been vehemently argued that there is no contradiction in the ocular and the medical evidence as nobody can assess the exact posture of any person who is under attack. It has been contended that if the presence of the eye- witnesses is believed then the evidence of doctor cannot be given much consideration as compared to the ocular evidence because the doctor is not the eye-witness. It has been argued that appellant was a callous who committed the murder of a young chap and his son in law. It has been argued that the deceased was the high hope of his family and after his murder the family of the complainant has been ruined. It has been contended that neither this is a case of mitigation nor this is a case of benefit, therefore, the learned trial court has imposed the normal sentence upon the appellant, as such, the appeal may be dismissed.
6. We have considered the arguments of learned counsel for the parties and have examined the record.
7. The most important aspect in this appeal is the medical evidence which does not corroborate the ocular account of the occurrence. This is the case of the prosecution that at the time of occurrence the appellant and the deceased were standing on equal pedestal and when fires were made on the appellant the deceased was in standing position. We have minutely gone through the record and failed to explore from the record that the deceased had ever duck down at the time of firing or the deceased was present on a lower pedestal as compared to the standing place of the appellant. We have also minutely seen the scaled site plan of the place of occurrence and non- scaled site plan, of the place of occurrence. From both these documents it is manifest that the deceased and the appellant were sanding on equal pedestal at the time of firing E have also taken note of the height of the deceased as well as of the appellant, both were found to be on the same height, therefore, it is not understandable how the fire shots were received by the deceased from upwards and dimension of the fires was found by the doctor from upwards to downwards, therefore, this inconsistency between that the medical and the ocular evidence cannot be reconciled by the prosecution and this fact also negates the presence of the P.Ws. Although the report of the Forensic Science Laboratory in this case is positive, we have taken it exceptional because parcel of the alleged recovered gun and that of the crime empty were sent to the Office of Forensic Science Laboratory, Lahore with a considerable delay, about which no explanation has been given by the prosecution. We have also taken into consideration that the alleged recovered gun was licensed one and possibility cannot be ruled out that it might have been taken into possession from the house of the appellant either on the day of occurrence or 2/3 days later, it might have been kept by the I.O. In Police Station and thereafter, empties were fabricated and sent to the office of Forensic Science Laboratory, Lahore and thereafter the gun was sent in order to procure positive report.
8 We are mindful of the situation that in this case, the deceased was a young chap and was also son-in-law of the appellant but we do not believe the presence of the P.Ws. At the place of occurrence at the relevant time, therefore, the prosecution has miserably failed to disprove its case against the appellant beyond any shadow of doubt. We, therefore, allow this appeal and by extending him the benefit of doubt, set aside his conviction and sentence and order his immediate release from jail, if not required in any other case.
MURDER REFERENCE IS ANSWERED IN THE NEGATIVE.
SENTENCE OF DEATH IS NOT CONFIRMED.