Ch. Mushtaq Ahmad, J.--This judgment will dispose of criminal appeal No. 513-J/2016 filed by Khalid appellant, Criminal Appeal No. 1396/2016 filed by Idrees alias Bagga appellant, Criminal Appeal No. 1509/2016 filed by Muhammad Azam appellant, P.S.L.A Nos. 306/2016, 307/2016, 308/2016, Criminal Revisions No. 977/2016, 978/2016 filed by complainant against respondents as well as Murder Reference No. 323/2016. Appellants were convicted by learned Additional Sessions Judge, Toba Tek Singh, in private complaint under Sections 302, 148, 149, PPC Police Station Rajana vide impugned judgment dated 31.05.2016 and sentenced as under: Khalid appellant Death as Ta'zir under Section 302(b) .PPC and to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased as required u/S. 544-A, Cr .P.C and in default of payment, to further undergo S.I for six months.
Idrees Bagga Imprisonment for life under Section 302(b), PPC.
Muhammad Azam Imprisonment for life under Section 302(b), PPC.
2. Prosecution case in brief is that Mst. Shamiran Bibi filed private complaint (Ex.PC) alleging therein that on 30.12.2014 at about 02.00 p.m, she alongwith her son Nobahar on motorcycle Honda 125/CC, her other son Abdul Sattar and Mazhar were traveling on separate motorcycle towards Chak No. 189/GB for purchasing grocery and when they reached near school of Chak No. 189/GB, accused Khalid s/o Amin armed with .12 bore gun, Asif armed with .12 bore gun, Khalid s/o Ishaq armed with .12 bore gun, Idrees @ Bagga armed with pistol, who were sitting in ambush all of sudden came in front of them. They tried to stop his son Nobahar , when he could not stop motorcycle, accused Idrees made fire by his pistol which hit on the motorcycle. Khalid and Asif sons of Amin armed with their :12 bore guns made one fire each of their gun respectively , which hit on upper side of right thigh. Her son fell down on receiving injuries. Khalid Hinjra accused made firing in order to threaten them. Accused while raising lalkara and brandishing their weapons fled away . Complainant and her witnesses had seen the occurrence.
Muhammad Azam SI and Nasir son of Anwar reached there. Muhammad Azam SI boarded him in injured condition in police Dala and he took him at his private torture cell at the house of Nasir . Nasir was front man of Azam SI for settlement of transaction between the litigants and him. Muhammad Azam SI and Nasir both were in contact with accused on mobile phone and accused committed the murder on the abetment and facilitation of Muhammad Azam SI and Nasir . That Muhammad Azam SI on procuring thumb impression of complainant himself prepared complaint for registration of case against real facts. The complainant moved application before Ex-of ficio Justice of Peace for recording of her supplementary statement and despite that police did not investigate the case on merits, hence, private complaint was lodged.
3. CW-6 Muhammad Azam SI on receiving information about the occurrence reached at the spot, inspected deadbody , prepared injury statement (Ex.CW3/B), inquest report (Ex.CW3/E), handed over deadbody alongwith police papers for postmortem examination, prepared recovery memos, recorded statement of PWs and after usual investigation submitted report.
4. Dr. Shoukat Ali Bajwa (CW-3) conducted postmortem on the deadbody of deceased Nobahar on 31.12.2014 at 08.30 a.m and noted injuries. According to him, Injury No. 1 was the cause of death. It ruptured main blood vessel of right leg excess bleeding shock and death. It was & caused by fire-arm weapon and it was ante-mortem injury .
According to him, time between injury and death was within 30-minutes and between death and postmortem was 24 hours.
5. After due course, charge was framed against appellants and co- accused to which they pleaded not guilty and claimed trial. Prosecution produced two PWs and seven CWs in all. Statements of accused under Section 342 Cr.
P.C. were recorded wherein they denied the charges and professed innocence. At conclusion of trial, appellants were convicted and sentenced as mentioned above. Hence, these matters.
6. Learned counsel for appellants contended that complainant Mst. Shamiran Bibi and Abdul Sattar , brother of the deceased were not present at the place of occurrence nor the incident was seen by them; that complainant herself got registered FIR against unknown culprits but lateron changed her stance and nominated the accused after consultation; that during investigation, they were also found not involved in the commission of offence and then private complaint was filed by the complainant concealing the real facts of the case; that there was clear conflict between ocular account and medical evidence due to which the ocular testimony was not reliable; that from the facts established on record, charge was not proved against present appellants who were entitled to acquittal.
7. Conversely , learned DPP assisted by learned counsel for complainant has supported the impugned judgment on the ground that charge against appellants/convict was fully proved through ocular testimony corroborated by medical evidence; that the learned trial Court has wrongly acquitted co-accused of the appellants/respondents who were also fully involved in the commission of offence and that their acquittal was liable to be set-aside and respondents were liable to be convicted in accordance with law .
8. Arguments heard. Record perused.
9. Nobahar , son of Mst. Shamiran Bibi complainant (PW-1) was gunned down allegedly at 03.00 p.m on 30.12.2014 in Chak No. 189/GB at a distance of 16 km from police station Rajana District. Toba Tek Singh. FIR was registered on written application (Ex.CW7/A) of Mst. Shamiran Bibi complainant against four unknown accused stating that she alongwith her deceased son Nobahar , her son Abdul Sattar (PW-2) and Muhammad Saleem son of Jaffar R/o Chak No. 187/GB were going to Chak No. 189/GB to purchase vegetables; unknown accused confronted them and two of them made one fire shot each at her son Nobahar which hit him on right thigh. It is pertinent to mention here that Mst. Shamiran Bibi after registration of case alleged that Muhammad Azam SI, investigating officer of the case had obtained her thumb impression on application and registered the case against unknown culprits whereas she had named the accused persons namely Khalid and Asif sons of Muhammad Amin, Idrees @ Bagga and Khalid son of Ishaq who on the abetment and facilitation of Muhammad Azam SI and one Nasir son of Anwar committed the murder and then immediately after the occurrence, Muhammad Azam came at the spot and took away deadbody of Nobahar at the Dera of Nasir accused who was his front man and used to take bribe on his behalf. That version, however , was found incorrect. Complainant then filed private complaint in which present appellants and acquitted accused were summoned to face trial. The version as contained in the FIR was disowned by the complainant and her son Abdul Sattar . However , in the priva te complaint, time and place of occurrence and the injuries sustained by Nobahar were reiterated as mentioned in the FIR. As per version of complainant, two accused had fired at her son Nobahar one fire shot each; they were Khalid and Asif sons of Amin which hit him on upper part of right thigh. Idrees @ Bagga accused also fired a shot which hit motorcycle. The occurrence was witnessed by complainant Mst. Shamiran Bibi along with her son Abdul Sattar (PW-2) and one Mazhar (not produced). Deadbody was received at hospital at 04.30 p.m as per statement of Dr. Shoukat Ali Bajwa (CW-3) and postmortem was conducted on the following day at 08.30 a.m. Only one fire-arm entry wound 3 cm x 2 cm on upper and front of right thigh with blackening was noted. No other injury was found on the deadbody .
Complainant stated that at the time of occurrence, she was sitting behind her son Nobahar (deceased) on one motorcycle when accused fired whereas on second motorcycle Abdul Sattar and Mazhar (not produced) were present. Admittedly , complainant (PW-1) did not receive any injury on her body during the occurrence. If she would have been in the company of the deceas ed sitting behind him on a motorcycle at the time of firing made by the accused, she must have received some injury on her body . Secondly , version of the complainant that they were going to purchase vegetables from another village on motorcycles, on the face of it was implausible, when her two sons Nobahar (deceased) and Abdul Sattar were available who could go to purchase vegetables, there was no occasion for complainant to go with them. Stance of the complainant that her version was not correctly recorded by the I.O. and only thumb impression on the application/ complaint were obtained, was negated by Abdul Sattar (PW- 2) who in cross examination admitted that written application was submitted by them before the police on which formal FIR was registered. Stance of prosecution witnesses that deadbody of Nobahar was taken at the Dera of Nasir on a Dalla was also not believable for the reason that deadbody was receive d at hospital within two hours of the occurrence, which fact was confirmed by CW-3 who conducted autopsy . The version of complainant was also in conflict with medical evidence. It is in the statement of CW-3 that only single fire-arm injury was found on the right thigh of the deceased Nobahar whereas complainant alleged two fire shots which hit the deceased. Ocular account was thus in conflict with medical evidence.
10. It has also come on record that deceased was involved in many criminal cases. He had even murdered his own sister and on that charge, he, was sentenced to death but the offence was compounded by legal heirs on which he was acquitted. The version of the defence that deceased being a hardened and desperate criminal, had many enemies and was murdered by some unknown culprits, was in line with the facts and circumstances of the case.
Presence of eye-witnesses at the place of occurrence, at the relevant time, in our opinion, was highly improbable and doubtful af fair.
11. On reappraisal of evidence, we have come to the conclusion that charge in this case was not proved against appellants beyond reasonable doubt. Conviction and sentences recorded by the trial Court are unsustainable whereas acquittal recorded in favour of respondents was justified and supported by the facts and circumstances established on record and we see no reason to set-aside the same.
12. Resultantly , Criminal Appeal No. 513-J/2016, Criminal Appeal No. 1509/2016 & Criminal Appeal No. 1396/2016 are allowed, appellants Khalid, Muhammad Azam and Idrees @ Bagga are acquitted of the charge from this case.
Appellant Khalid be released forthwith if not required in any case. Appellants Muhammad Azam and Idrees @ Bagga are on bail, their sureties stand discharged. Murder Reference No. 323/2016 is answered in negative and death sentenced awarded to appellant/convict Khalid is not confirmed.
13. For the reasons recorded above, P.S.L.A Nos.306/2016, 307/2016 & 308/2016, criminal revisions No. 977/2016 & 978/2016 filed by complainant against respondents are dismissed haying no substance.