Syed Hussain Mazhar Kaleem, J.-Above titled appeals have been directed against the judgment of Additional District Court of Criminal Jurisdiction Mirpur dated 22.10.2013 whereby, the appellant was convicted and awarded life imprisonment under Section 3 read with Section 24 of the Islamic Penal Laws Act, 1974, Rs, 50,000/- Hakoomat Adil under Section 15 of the said Act and 10,00,000/- rupees compensation under Section 544 of the Cr.P.C.
2. Brief facts forming background of the appeals are that a case under Sections 307, 147, 148, 149, APC and Section 15 of the Islamic Penal Laws Act, 1974 was registered at Police Station Dudyal on the complaint of Muhammad Farooq. It was reported that Muhammad Qayyum got land from WAPDA on lease. On 9.10.1992 at 2:00 p.m., he along with Muhammad Habib, Karam Ellahi and the complainant came there to plough it with tractor. Aftpr finishing the cultivation at about 3:00 p.m.
They left the field and when arrived at the place of occurrence, Muhammad Malik, Muhammad Shafique, Muhammad Rafique, Muhammad Tariq, Muhammad Khalid and Tahir Mahmood hiding behind the trees suddenly appeared at the scene. Muhammad Malik and Muhammad Rafique were armed which .12- bore gun and the remaining with pistols. Muhammad Malik raised lalkara, asked others to kill them and he fired at Muhammad Qayyum which hit him at his left thigh.
Muhammad Rafique also fired and targeted at his left thigh. The victim fell down. Later on Muhammad Tariq, Muhammad Shafique, Tahir and Khalid fired with pistols and caused injuries at his legs. Karam Elahi tried to rescue him upon this, Muhammad Shafique fired two shots which hit him at neck and right arm. Muhammad Rafique was alleged for giving blow at his head with the butt of rifle. The complainant and Habib made hue and cry upon which, the offenders fired at them.
They ran away and saved their lives. The motive was the dispute over land and litigation between the parties.
3. After completion of investigations, the Challan was submitted before the trial Court. During proceedings, Muhammad Shafique, Muhammad Malik, Muhammad Tariq, Tahir Mahmood and Muhammad Khalid absconded, resultantly, they were proceeded_ under Section 512, Cr.P.C.
However, Muhammad Rafique remained present before the Court and after conclusion of the trial, he was convicted in the aforesaid manner through the impugned judgment hence, the above titled appeals.
4. Learned counsel for the convict-appellant argued that the trial Court failed to appreciate the evidence on record in a judicial manner. Admittedly an enmity was prevailing between the parties.
Muhammad Rafique along with his real brother and others was roped in a false case on account of unpleasant relations with the complainant. The eye-witnesses were closely related to the deceased. They were also inimical towards the convict and were interested in his conviction. The ocular version given by the partisan witnesses was highly distrustful and it was not supported by any independent corroborative material. During trial the prosecution failed to prove their presence at the spot. The eye-witnesses account was contradicted by the post-mortem report and medico legal report pertaining to Kararm Elahi. The recovery of weapon of offence from the convict was highly doubtful. It was fake and fabricated in order to strengthen the prosecution case. It was evident from the record that the gun was broken and it was not in working order thus, the recovery was of no help tote prosecution case. The trial Court while convicting the appellant ignored that the site-plan clearly negated the ocular version. The whole prosecution story was highly doubtful.
The witnesses were not found Aadil during purgation, Their deposition was not corroborated by any independent incriminating material and it was not safe to be believed for recording conviction, therefore, by accepting the appeal and setting-aside the impugned judgment he may be acquitted of the charge.
5. On the other side, it was argued that the occurrence took place in broad day light. The convict- appellant and others were nominated in promptly lodged F.I.R. Names of the eye-witnesses were also mentioned therein. The place and time of occurrence was not disputed. The convict was alleged for causing fire-arm injury to Muhammad Qayyum resulting into his death. The allegation was corroborated by post-mortem report Exh.PQ and was also supported by, the recovery of weapon of offence from the appellant. Presence of the eye-witnesses at the spot was proved beyond doubt. The ocular version was confidence inspiring. It was evident from the record, that there was a dispute between the parties over a piece of land. On the fateful day, the convict and the accused absconders in order to execute the pre-arranged plan were laying in ambush, when the victim arrived at the spot they opened attack and committed his murder. During trial, it was successfully proved that the incident took place at the spot and in the manner alleged by the prosecution. The ocular version was confidence inspiring and mere relationship of the witnesses with the deceased was not sufficient to disbelieve them. The trial Court appreciated the evidence on record in a judicial manner and arrived at correct decision, however, committing a serious illegality while awarding lesser punishment of life imprisonment to the convict, therefore, by accepting the appeal he may be awarded the normal punishment of death sentence provided for the offence of murder.
6. We have heard the learned counsel for the parties and considered the record with care.
7. The eye-witnesses account was that Muhammad Qayyum deceased got some land on lease from WAPDA, which was in his possession. On 9.10.1992 he along with Muhammad Habib, Karam Elahi and Muhammad Farooq came there to plough it with tractor. After cultivation, they left for home. At about 3:00 p.m. When they arrived at the place of occurrence the convict-appellant and accused absconders, who were hiding themselves behind the trees suddenly appeared at the scene. Muhammad Malik and Muhammad Rafique were armed with .12-bore gun. Tahir, Tariq, Muhammad Shafique and Khalid were armed with pistols. Muhammad Malik accused raised ,lalkara asking his companions to kill them. He fired with .12-bore gun and caused injury at the left thigh of Abdul Qayyum. Thereafter, Muhammad Rafique convict also fired with .12-bore gun and targeted his left thigh. The victim fell down after receiving the injuries, Muhammad Shafique, Tariq, Tahir and Khalid accused-absconders fired and inflicted injuries at his legs with pistols. Karam Elahi made hue and cry upon which, Muhammad Shafique fired two shots which hit him at his neck and right arm. Muhammad Rafique gave a blow with butt of rifle at his head. P.W complainant and Habib started making noise upon which, Muhammad Shafiqe accused-absconder fired but failed to target them. They ran away to save their lives and reported the matter to the police. The convict-appellant and others also fled away after committing the offence.
8. In support of the above stated eye-witnesses account blood stained clay, one four size crime empty of .12-bore gun, three crime empties of pistols seized from the spot, .12-bore guns recovered at instance of Muhammad Rafique and Muhammad Malik and pistols seized from the accused- absconders were produced in evidence. Postmortem report Exh.PQ and site-plan Exh.PU were also placed on record. The trial Court by putting reliance on the aforesaid material convicted the appellant and awarded him life imprisonment while the case to the extent of the absconders was kept in abeyance till their availability.
9. The defence claimed that an enmity was prevailing between the parties. The prosecution witnesses were closely related to the deceased. They were also inimical towards the appellant and were interested in his conviction. It is well settled that mere relationship with the deceased is not sufficient to discard the evidence of the prosecution witnesses but where there appears that the parties are inimical towards each other, the witnesses are related inter-se, and interested in conviction of an accused, and the apprehension of false implication also cannot be ruled out, the deposition of such witnesses must be corroborated by some confidence inspiring independent incriminating material.
10. In the present case, though the motive was not proved as no evidence regarding the dispute over land was brought on record but the deposition of the eye-witnesses and trend of cross- examination clearly shows that an enmity was prevailing between the parties. Admittedly all the witnesses were related inter-se and were also inimical towards the convict appellant thus, strong corroboration from some independent source in support of the ocular version was required in the circumstances.
11. According to the prosecution's case occurrence took place on 09.10.1992. The deceased suffered two injuries caused .12-bore gun at left thigh and bullet injuries caused by pistols at his legs. During post-mortem no bullet injury was found at the person of the deceased. The post-mortem report reveals the following injuries:--
1. Entrance wound. Central part of wound is 1/2 inch and is of circular type surrounded by 60 small entrances of pellet wounds. The small wounds caused by pellets are blackened. These wounds collectively occurred at anteriomedial part of left thigh at lower part of upper 1/3rd of thigh. Central wound caused by pellet resulting rupture of left femoral artery and vein, all these wounds are over 5 inch circular area;
2. Lacerated wound measuring 1" long and 1/2 inch deep and 1/2 inch wide at left part left shin of junction of lower abrasion of 1/2 x 1 left below to the Wound No 2.
3. Lacerated_ wound of 11/2 long 1/2 x 1/2 situated at left shin near middle and slightly lateral on shin, abrasion of 1 inch circular type on medial part of shin near Wound `No, 2.
' In. Doctor's opinion the death occurred due to severe external hemorrhage and shock, because of rupture of the femoral artery & vein The injuries were caused by gun-shots. The victim was facing the assailant and the distance between them was fifteen feet. It follows that no bullet injury was found at the dead body thus, the ocular, version to the extent of using pistol during the incident was not correct and this part of the story was an exaggeration. The witnesses also claimed that the injuries found at the left thigh of the deceased were caused by two fires which were made by Muhammad Malik and Muhammad Rafique but the report does not clearly indicate that the wound was result of two gun shots.
12. The most important 'piece of evidence in the case was site. Plan Exh.PU. It shows that the deceased was present at Point No,
1. Muhammad Malik accused fired at him from Point No,
3. It was towards north at the distance of 15 feet from the victim. The convict-appellant was shown to be present at Point No, 4 which was at the distance of 9 feet towards the north-west of Point No, 1 while, the remaining accused and the defence witnesses were towards the west of the above mentioned point. As per post-mortem report the victim suffered injury at anteriomedial part of left thigh was assaulted upon from the front from a distance of 15 feet. As said earlier that Muhammad Malik accused-absconder was towards the north from the place of occurrence while Muhammad Rafique was shown to be present towards the north-west and the injury was caused at anteriomedial part of the thigh. This clearly shows that it cannot be caused by two fires made from different angles particularly, the anteriomedial part of the thigh cannot be targeted from the left side. It may be stated here that an injury on. The same spot with two fires can only be caused with an automatic weapon from the same place by an expert and professional shooter but it is impossible to cause such injury with a traditional weapon particularly like the single barrel .12-bore guit Moreover in the present 'case all the eye-witnesses alleged that firstly Muhammad Malik accused-absconder fired at the deceased from the distance of 15 feet and caused injury at his left thigh. They attributed the second fire to the convict-appellant who was at a distance of 9 feet from the victim towards his north-west. Keeping in view the position of both the assailant assuming that the convict fired second shot from the place shown in the site-plan at the victim the pellets should have hit him at the lateral part of the thigh as it was impossible for him to target anteriomedial part of left thigh of the victim form Point No,
4. Another circumstance requiring consideration was that during investigation a crime empty of size four was recovered from the place of occurrence. The normal cartridge of size four carries minimum 193 pellets. During post-mortem only 60 pellets were shown to have been recovered from the injury thus, the claim of the prosecution that the two fires hit the deceased at the same part of the body and caused injuries was highly doubtful.
13. Allegedly the weapon of offence, .12 bore gun, 'was recovered at the instance of Muhammad Rafique appellant on 12.10.1992 in presence of Muhammad Farooq and Muhammad Habib through recovery memo. Exh.PH. Both the witnesses were closely related to the deceased and it was also established that they were inimical towards the convict-appellant. The defence alleged that the .12-bore gun was handed over to the police by the wife of Muhammad Rafique convict. She was sister of P.W. Muhammad Farooq who was also an attester of the recovery memo. Exh.PH. The claim may be incorrect but since during recovery the Investigating Officer ignored the enmity between the parties, he did not bother to ask any independent respectable of the locality to join the process and it was done only in presence of the related inter-se and interested witnesses thus, the whole proceedings undertaken by him while seizing the weapon were not transparent. It is interesting to note that the attesters categorically stated that the gun was broken and as per deposition of the Investigating Officer P.W. Ch. Munir Hussain the said gun was not in working order even at the time when it was seized.' Though some of the eye-witnesses claim that during the occurrence the gun was broken when Muhammad Rafique hit Karam Ellahi at his head with its butt but the medico legal report Exh.PS does not convince that such force was used for causing Injury No, 3, as it was a lacerated wound which was simple in nature thus, their deposition was incorrect. The aforesaid fact along with deposition of the Investigating Officer that the gun was broken and was, not in working condition at the time it was taken into possession, was correct and the recovery was of no help to the prosecution case.
14. The trial Court while convicting the appellant failed to appreciate that the parties were inimical towards each other. All the prosecution witnesses were closely related to the deceased. They were inimical towards convict-appellant and were interested in his conviction. They were not found adil during purgation and their B deposition was not safe to be believed for recording conviction without any corroboration from some independent source, but no such material was made available. Muhammad Rafique convict-appellant was alleged for firing at the deceased from the distance of 9 feet. The post-mortem report shows that the deceased suffered fire-arm injury from the distance of 15 feet and no injury was found to have been caused from the distance of 9 feet, hence, the claim of causing fire-arm injury to the deceased by. .12-bore gun from two different angles and the distance at the same part of the body was not proved. The allegation of causing injuries at the leg of the deceased with pistols was also not found correct as it was not supported by the post-mortem report Exh.PQ. Besides the recovery of weapon of offence from the convict- appellant was doubtful and it was evident that .12-bore gun which was claimed to have been recovered from Muhammad Rafique convict within three days of the occurrence was not in working condition at the time it was seized . The site-plan also negated the prosecution story thus, the ocular version given by the partisan witnesses was not supported by any independent incriminating material and due to prevailing enmity between the parties the apprehension of false implication was also there. Therefore, the conviction was not justified in the circumstances.
' The upshot of the above discussion is that the appeal filed by the convict is accepted and he is acquitted of the charges while that of filed by the legal heirs of the deceased being without any substance is hereby dismissed.