' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above-captioned criminal appeal filed under section 410, Cr.P.C. By appellant Ghulam Ahmad alias Muhammad Aamir, which impugn the legality of judgment handed down by the learned Additional Sessions Judge, Arifwala, District Pakpattan Sharif on 16-7-201.1, whereby he along with his co-accused Muhammad Khalid and Muhammad Waseem was tried in a case registered vide F.I.R. No,58 dated 4-2-2006 under sections 302/324/109/34, P.P.C. At Police Station City Arifwala, District Pakpattan Sharif and convicted and sentenced infra:- Under section 324, P.P.C Seven years' Rigorous Imprisonment and to pay a fine to the tune of Rs,30,000 and in default whdttof to further undergo simple imprisonment for three months.
Under section 337-F(iii) of Pakistan Penal CodeTo pay Rs,50,000 as Daman to the victim and to undergo rigorous imprisonment for two years as Tazir.
Under section 337-F(ii) of Pakistan Penal CodeTo pay Rs,50,000 as Daman to the victim and to undergo rigorous imprisonment for two years as Tazir.
Under section 337-F(v) of Pakistan Penal CodeTo pay Rs,1,00.000 as Daman to the victim and to undergo rigorous impristmment for three years.
All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. The law-enforcing agency came into motion, when Abdul Sattar got registered the F.I.R. Under sections 324/109/34, P.P.C. Levelling accusation that on 2-2-2006 at about 11-30 a.m., he along with Saleh Muhammad, Abdullah, Sarfraz, Rab Nawaz proceeded to Arifwala in order to purchase manure and were kept on waiting for bus at Lorry Adda Arifwala. Sarfraz his brother and Rab Nawaz his maternal cousin to take tea approached a hotel facing Caltex Petroleum, who were resting on the cot of the Hotel when Muhammad Ahmad armed with .222 bore, Muhammad Amir armed with .30 bore pistol (appellant) while raising lalkaras came there from the direction of patrol pump and went towards Sarfraz and Rab Nawaz while hollering that they will avenge the murder of their father Muhammad Idrees. Muhammad Ahmad fired-with his .222 bore rifle, which hit Muhammad Sarfraz on his abdomen and right thigh whereas Muhammad Amir @ Ghulam Ahmad fired repeatedly upon Rab Nawaz hitting on his arms and abdomen. In the meantime, Muhammad Amir (appellant) and unknown also fired at Rab Nawaz, which hit one Ghulam Mustafa son of Lal Din who was standing at the workshop. On the hullaballoo of the complainant as well as Saleh Muhammad and Abdullah the accused persons took flee towards west while making aerial firing. He further stated that Sarfraz, Rabnawaz and Ghulam Mustafa were shifted to Civil Hospital, Sahiwal. From there Sarfraz was referred to Jinnah Hospital, Lahore where he was still in precarious condition at the time of lodging the F.I.R.
' Motive behind the occurrence was that 15/16 years earlier Muhammad Idrees father of the appellant was murdered by Sarfraz (deceased) but the matter was hushed up. Complainant further alleged that the occurrence took place at the abetment of Muhammad Khalid son of Idrees and that the delay in lodging the F.I.R. Was occasioned because of his business in the treatment of Sarfraz and Rab Nawaz. The unknown assailant was nominated as Muhammad Wasim son of Muhammad Rafique through supplementary statement. One of the victim namely Sarfraz succumbed to injuries and section 302, P.P.C. Was inserted later on.
3. Investigation in this case was conducted by Mazhar Hussain, SI, who appeared as P.W.10. He deposed that on 2-2-2006, he was present at THQ, Hospital Arifwala. Three injured persons were brought in the hospital, he prepared the injury statement of injured Rab Nawaz Exh.PL, Sarfraz Exh.PM and Ghulam Mustafa Exh.PN, two injured persons namely Sarfraz and Rab Nawaz were referred from THQ Hospital, Arifwala to DHQ Hospital, Sahiwal. On 4-2-2006, he along with police posse was present at Qaboola Chowk on patrolling duty and checking of the crime when Abdul Sattar complainant got recorded his statement which was Exh.PA, sent the same through Abdul Jabbar constable to police station for registration formal F.I.R., on the same day, he inspected the place of occurrence, prepared rough site plan Exh.PP, recorded the statements of the P.Ws., prepared recovery memo of blood imbrued earth of Sarfraz and Rab Nawaz, Exh.PR and Exh.PJ. On 5-2-2006 Duty Officer Police Station, Arifwala sent report No,7 Exh.PQ to him with the information that injured Sarfraz succumbed to injures in Jinnah Hospital. On the same day, he along with Abdul Jabbar constable, proceeded to Jinnah Hospital, Lahore and prepared the injury statement and inquest-report Exh.PR and Exh.PS of deceased Sarfraz and shifted the dead body to THQ Hospital, Arifwala for postmortem. On 6-2-2006 Abdul Jabbar constable handed over to him the last worn clothes of deceased Sarfraz after postmortem examination, took the same into possession vide recovery memo Exh.PC and recorded the statements of the P.Ws. On 8-2-2006, Ghulam Mustafa, Draftsman, prepared rough notes of the place of occurrence at the place of occurrence. On 14-2- 2006, Ghulam Mustafa Draftsman handed over to him scaled site plan Exh.PB and his statement recorded. On 15-2-2006 through written application Exh.PT submitted before the doctor, with the approval of the doctor, recorded the statement of injured P.W. Rab Nawaz and three other witnesses, injured P.W. Rabnawaz in his statement nominated accused Waseem, he handed over the case property i.e, blood imbrued mud and last worn clothes to Moharrar on 23-2-2006 and recorded the statements of Moharrar and Habib constable. On 22-4-2006 the result of blood imbrued mud of Rab Nawaz, Sarfraz was received.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case.
5. At the trial, the prosecution in order to prove its case produced 11 prosecution witnesses in all.
6. The medical evidence was adduced through the statement of Dr. Manzoor Qadir Joya, M.O.
(P.W.4), who on 6-2-2006 at 8-10 a.m., conducted post mortem examination of Sarfraz's dead body and observed the following injuries:- INJURIES ' A lacerated firearm entrance wound 1 cm x 1 cm going deep with inverted margins (deceased).
Burning blackening was present on the right lateral side of abdomen lower part 3 cm above iliac crest.
(2) A lacerated firearm entrance dressed wound lcm x lcm going deep with inverted margins, Blackening and burning was present. 2 cm below from injury No, 1 .
(3) A lacerated firearm exit dressed wound 5 cm x 2 cm going deep with averted margins on the left lumber region 12 cm to the left of spine.
(4) A lacerated firearm entrance dressed wound lcm x lcm going deep with inverted margins with blackening and burning positive on the middle part of right thigh antero lateral aspect.
(5) A lacerated firearm exit dressed wound 6 cm x 2.5 cm going deep with averted margins on the antero medical side of right thigh middle part, (Remarks)
' After external and internal examination of dead body, in his opinion, death occurred due to accumulative effect of all the injuries, leading to cardio-pulmonary arrest and death. All injuries were ante-mortem and injury Nos.1 and 2 was sufficient to cause death in ordinary course of nature. All injuries were caused by firearm.
' Probable time that elapsed between injuries was that the deceased while alive in injured condition was examined on 2-2-2006 at 11-55 a.m. By the doctor. Duration of injuries was than about within one hour. According to death certificate death occurred on 5-2-2006 at 3-50 p.m. And between death and post mortem was 14 to 18 hours.
' Exh.PD along with pictorial diagrams Exh.PD/1-2 were pictorial diagrams.
7. On 2-2-2006, said doctor also medically examined Muhammad Sarfraz deceased in an injured condition and observed following injuries on his body:-- INJURIES
(i) A lacerated firearm entrance wound 1 cm x 1 cm, going deep with inverted margin burning blackening was present on the right lateral side of abdomen lower part 3 cm above iliac crest.
(ii) A lacerated firearm entrance wound 1 cm x .1 cm going deep with inverted margins with blackening and burning present around the wound 2 cm below from injury No, 1.
(iii) A lacerated firearm exit dressed wound 5 cm x 2 cm going deep with averted margins on the left lumber region 12 cm to the left spine.
(iv) A lacerated firearm entrance wound 1 cm x 1 cm going deep inverted margins, blackening and burning present around the wound on the middle part of right thigh antero-lateral aspect.
(v) A lacerated firearm exit wound 6 cm x 2.5 cm going deep with averted margins on the antero medial side of right thigh middle part. All corresponding tear were present on Qameez and Shahlwar.
8. On the same day at about 11-50 a.m., said doctor also medically examined Rab Nawaz and observed following injuries on his body:--- INJURIES.
(i) A lacerated firearm entrance wound 1 cm x 1 cm going deep with inverted margin (blackening and burning present around the wound) on the antero lateral aspect of right forearm 10 cm above wrist joint.
(ii) A lacerated firearm exit wound 1.5 cm x 1.5 cm going deep with averted margins on the antero medial side of right forearm 3 cm above wrist joint with clinical fracture of right ulna.
(iii) A lacerated firearm entrance wound 1 cm x 1 cm x going deep with averted margins (blackening and burning present) on the antero lateral side of left forearm 13 cm above wrist joint.
(iv) A lacerated firearm exit wound 1.5 cm x 1.5 cm going deep with averted margins on the atero medical side of left forearm 8 cm above wrist joint.
(v) A lacerated firearm entrance wound 1 cm x 1 cm going deep with inverted margin (blackening and burning present) on the front and middle part of abdomen 6 cm above umbilicus.
9. On the same Mustafa was also examined by the said doctor, who observed following injuries on his person:- INJURIES.
(i) A lacerated fire arm entrance wound 2 cm x 1.5 cm going deep with inverted margin blackening and burning present on the medial side and upper part of left leg.
(ii) A lacerated firearm exit wound 5 cm x 1.5 cm going deep with averted margins on the lateral side and middle part of left leg.
10. The complainant renounced P.Ws. Namely Saleh Muhammad, Abdullah, Muhammad Sarwar, Altaf, Muhammad Shabir-672C and Muhammad Mustafa as being unnecessary. He by tendering in evidence report of Chemical Examiner of Rab Nawaz injured Exh.PEE, report of Chemical Examiner of Sarfraz Exh.PFF, report of Serologist of Sarfraz Exh.PGG and attested copy of judgment dated 3-11- 1991 of the Court of Mahar Silabat Khan, learned ASJ, Sahiwal closed the prosecution evidence.
11. Afterwards the statement of the appellant under section 342, Cr.P.C. Was recorded; in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He, however, neither opted to adduce evidence in his defence nor to appear as his own witness under section 340(2), Cr.P.C.
11-A. Appellant in reply to the question "why this case against you and why the P.Ws. Have deposed against you" answered as follows:-- "It was a false case lodged against me and the co-accused persons. The complainant party and deceased had deep-rooted enmity and rivalry with many persons. Any unknown enemy of the complainant party has committed the occurrence. The actual culprits were not known and were not identified at the time of occurrence. The complainant and witnesses after consultation and premeditation deliberately lodged this false case against me and co-accused persons after inordinate delay of four days. The complainant was not present at the time to occurrence, he was called later on. The prosecution did not produce the intendant injured witness namely Ghulam Mustafa, who was not ready to ' corroborate the false version of the complainant. The P.Ws. Deposed against me and the co- accused persons being close relative of the complainant and the deceased and having enmity with me and co-accused persons."
12. Upon conclusion of the trial, appellant was convicted and sentenced as mentioned op-cit by the learned trial Court whereas his. Co-accused Muhammad Khalid and Muhammad Waseem were acquitted of the charges by giving them the benefit if doubt. Hence the appeal.
13. Learned counsel for the appellant submits that the occurrence took place on 2-2-2006 whereas the matter was reported on 4-2-2006 at about 8-30 p.m., in this way, fifty six hours were consumed by the complainant party to report the matter to the police whereas the place of occurrence was situated at a distance of one mile from the police station. Learned counsel further submits that the appellant did not cause any injury to deceased Muhammad Sarfraz. Learned counsel adds that on the day of occurrence, Muhammad Sarfraz deceased, injured Rab Nawaz and Ghulam Mustafa, passerby injured were medically examined through police at about 11-50 a.m. Within the period of one hour but neither the complainant nor any of the injured persons made any statement to the police involving the appellant in the commission of occurrence. Learned counsel further adds that the complainant in his statement has categorically admitted that before 4-2-2006, he did not make any statement before the Investigating Officer about the happening of the incident or involvement of the appellant/ Learned counsel maintains that the investigation officer in his cross- examination has categorically admitted that before the lodgment of the F.I.R. And on the day of incident and even thereafter the complainant party has kept on seeing him but nobody made a statement before 4-2-2006 and this conduct of the complainant party shows that in fact nobody knew who caused injury to the deceased or to the injured persons but later on after due deliberations the case was lodged against the appellant and his co-accused Muhammad Ahmad since been declared proclaimed offender. Learned counsel further maintains that Ghulam Mustafa passerby injured did not appear before the police whereas the motive is farfetched as is evident from the record that Sarfraz deceased person murderer of the father of the appellant was acquitted by the court of learned Additional Sessions Judge, Sahiwal on 3-11-1991 since then up to the date of occurrence, no untoward occurrence had ever taken place and what happened all of a sudden is shrouded in mystery. Learned counsel argues that even in the F.I.R. It has been mentioned that in the said murder case compromise was effected between the parties then the motive remains no more with the appellant to launch attack upon deceased Rabnawaz. Learned counsel further argues that no doubt specific injuries have been attributed to the appellant on the person of Rabnawaz but his statement cannot be believed for the simple reasons that the injury is not stamp of truth of statement and there is no cavil to this proposition that the statement of the injured can be disbelieved. Lastly it has been submitted that recovery of pistol is inconsequential in absence of any positive report, therefore, has prayed for acceptance of appeal.
14. Learned DPG assisted by the learned counsel for the complainant has vehemently opposed the submissions on the grounds that the appellant is nominated in the F.I.R.; Rabnawaz, injured witness has made statement against him; the other. Ws. Have also been found tenacious to the stand of the injured and the doctor has also corroborated the ocular account and thus, the prosecution has proved its case against the appellant.
15. Supplementing to the arguments, learned counsel for the complainant submits that the appellant is responsible even for the murder of deceased Sarfraz by virtue of applicability of section 34, P.P.C. Or at least he is liable to be sentenced more than imposed by the learned trial Court.
16. Arguments have been hearkened. Record buck passed. Both the parties have expressionistically put the respective cases at the bar.
17. The matter was reporting to the police with the delay of 56 hours without any reasonable explication. It has been noticed that on the day of incident, three injured persons mentioned hereinabove were medically examined within a shortest span of time. The police was available in the hospital. Neither the complainant nor any eye-witness inclusive of the injured persons made any statement that they were caused injuries by the appellant and his co-accused. It has been considered apropos not to discuss the eye-witnesses in this case except to dilate upon the statement of the injured. The injured has categorically admitted in the cross-examination that he made a statement after 10/12 days of the incident before the Investigation Officer for the first time.
Investigating Officer in his cross-examination has categorically admitted that before 2-4-2006, nobody told him about the causing of injuries by the appellant and his co-accused. As the chance of time was available with the complainant and his other non-injured eye-witnesses to report the matter to the police at the earliest but none did so which speaks volume. No doubt injured Rabnawaz has deposed against the appellant but at the same time his statement cannot be taken a gospel truth. In the circumstances of the case and even otherwise in the parlance of law in the running evoke the injured can be disbelieved. In this respect numbers of legal precedents have been handed down by this Court as well as the Hon'ble Supreme Court of Pakistan. Stamp through injuries of his presence may be established but whatever the injured speaks through his tongue cannot be believed. Circumstances available on the record persuade the court not to accept the statement of injured in this case against the appellant.
18. Motive does not appeal to reasons as some time earlier in 1991 Muhammad Sarfraz deceased was acquitted in the murder case of father of the deceased. What happened within two decades before the happening of instant occurrence is not known to anybody. Recovery of pistol is risible in absence of any positive report. The same is not believed.
19. For what has been discussed above, the trout-ensemble is that the prosecution has not been able to prove its case against the appellant beyond any reasonable shadow of doubt, therefore, instant appeal is allowed, conviction and sentence inflicted upon the appellant is set aside and he is directed to be set at liberty tout-de-suite, if not required in any other case.
20. It is markedly mentioned that the observations mentioned herein above shall not cause any prejudice to the mind of the learned trial Court while deciding the case of proclaimed offender Muhammad Ahmad. The record of this case shall be kept intact till the decision of case against said proclaimed offender.
21. For the reasons mentioned op-cit, Criminal Revision Petition No,1026 of 2011 is hereby put out of judicial consideration (ceased to consider).