' Islamud Din (22) and Muhammad Asghar (20) were tried by Mr.Nafees Ahmad Bajwa, Additional Sessions Judge, Faisalabad, for the offences under sections 394 read with section 398 P.P.C. And 302/34 P.P.C. On 16-4-1978 Islamud Din was convicted and sentenced to death under section 302 P.P.C. With a fine of Rs, 5,000 in default to undergo two years R.I. On the count under section 394 read with section 398 P.P.C. He was sentenced to 10 years R.I. With a fine of Rs, 2,000 in default to undergo six months R.I. Asghar, accused, was however acquitted. This judgment will dispose of the convict's appeal and the connected murder reference.
2. Prosecution case is that at about 2 a.m. On 10-10-1975 Muhammad Niaz (informant) heard some noise coming from the road near his house. He woke up and saw that his maternal uncle Inayat had been held by Islamud Din accused armed with a pistol and Asghar armed with a knife. They were trying to rob him and were asking him to take out the money. In the meantime Barkat Ali, Abdul Wahid and Muhammad Bashir also reached there. Inayat tried to catch hold of Islamud Din who fired at him hitting him in the abdomen. Inayat fell down. Muhammad Niaz had a stick with him. He hit Islamud Din with it. Asghar fled away but Islamud Din was overpowered with the pistol at the spot. Islamud Din had also fired two shots which did not hit anyone. Inayat was carried to the hospital by Sadiq Ali and Boota. Islamud Din was secured at the spot by Niaz, Malik Barkat, Abdul Wahid and Bashir. After obtaining the medico-legal certificate from the hospital about the injuries of Inayat, Sadiq came back to the spot. Muhammad Niaz, Barkat, Abdul Wahid and Bashir took the accused to Police Post Ghulam Muhammadabad where they also produced the medical certificate. P.W.6 Niaz made statement Exh.P.F. At the police post at 5.30 a.m. Which was recorded by P.W.11 Moeenud Din, S.I., on the basis of which formal F.I.R. Exh.P.F/1 was registered at Police Station Gulberg, . Faisalabad at 6 a.m. The same day. Police Station is at a distance of one mile from the place of occurrence. P.W.11 Moeenud Din A.S.I., arrested Islamud Din and took into possession revolver P.4 with three empties P.5/1-3 and live bullets P.6/1-2 which were produced before him by the informant. These were made into a sealed parcel vide memo Exh.P.H. He also prepared accused's injury statement Exh.P.B. And then went to the hospital. He made a query from the doctor whether Inayat was fit to make a statement. The S.I. Recorded his statement under section 161 Cr.P.C. On 23-1-1975, the S.I. Received information that Inayat had died. He went to the hospital, prepared the necessary documents, and sent the dead-body for its post-mortem examination.
3. P.W.1 Dr. Bashir Hussain Kahloon, Medical Officer, DHQ, Hospital, Faisalabad on 10-10-1975 at 2.30 a.m. Examined Inayat and found the following injuries on his person:- "(1) A punctured wound 3/8" x 1/8" depth not probed on the front of right side of the abdomen.
(2) An abrasion 1" x 1" on the right side of the forehead. The same day at 9.30 a.m. He examined Islamud Din accused and found the following injuries on him:- "(1) A lacerated wound 1" x 1" x 1" on the left lower eye lid on its outer side with swelling 2" x 1"
(2) Contused mark 2" x 4" on the left side of the neck.
(3) A contused mark 2" x 1" on the front of the left chest.
(4) Contused mark 2" x 1" with abrasion i" x i" on the right clavicle bone.
(5) Contused mark 4" x i" on the right index finger.
(6) Multiple contused marks on the right upper arm.
(7) Multiple contused marks in the area at 12" x 2" on the back of left chest and at the middle.
(8) Multiple contused marks 8" x 6" on the back of the right shoulder.
(9) A swelling 2" x 2" on left ankle.
' On 23-10-1975 at 9 a.m. The doctor also held the autopsy on the dead body of Inayat and noted the same injuries when he was alive. Death in his opinion was due to peritonitis and intestinal gangrene as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. This injury was caused by a shot fired from a distance of 10 to 12 feet.
4. On 27-10-1975, P.W.11 Moeenud Din, ASI, arrested Muhammad Asghar accused and on 2-11-1975 he in police custody led to the recovery of knife P.7 from within a heap of wheat situate in the area of 'Kachi Abadi' Ghulam Muhammad Abad. It was taken into possession through memo Exh.P.M.
Attested by P.W.9 Abdul Wahid and Muhammad Boota given up as having been won over. After completing the investigation, the accused were sent up for trial.
5. Both accused denied guilt at the trial. Explaining his injuries, Islamud Din stated that at 8/9 a.m.
He was sent by the police from his house and accused of the murder and theft. Police tortured him and gave him 20-25 stick blows. He added that his house was near the place of occurrence and the police suspected 3/4 other persons but they were let off and being a poor man, the case was foisted against him. Denying the prosecution case, Muhammad Asghar said that he was not present at the place of occurrence and had been roped in at the instance of P.W.6 Muhammad Niaz who was inimical towards him. No accused led defence.
6. Ftelying on the statements of P.W.6 Muhammad Niaz, P.W.7 Shaukat All P.W.9 Abdul Wahid and P.W.10 Muhammad Sadiq, and the apprehension of the appellant at the spot, trial court came to the conclusion that the prosecution case was satisfactorily proved against Islamud Din accused. It considered the prosecution case doubtful against Muhammad Asghar and acquitted him.
7. Criticizing the finding, learned counsel for the appellant contended that the prosecution story was self-contradictory and did not appeal to reason. He argued that it is in the evidence of P.W.6 Muhammad Niaz, informant, that on the Lalkara of the witnesses, Inayat (deceased) tried to grapple with Islamud Din and Islamud Din fired at Inayat which hit him in the abdomen and thereafter he fired two shots in the air. Had there been grappling and as the prosecution story goes Islamud Din fired a shot from a close range in the abdomen of the deceased, it would have caused blackening, charring and the bullet would have passed through the body but according to the medical evidence, there is no wound of exit nor the bullet has been recovered from the body. It was perhaps for this reason that the doctor who held the autopsy under cross-examination said that he could not ascertain the nature of the weapon used in causing injury No,1. He also admitted that there was no burning or blackening around this injury on the body. According to him, he had noticed the corresponding holes against injury No,1 in the Kurta and Shilwar but did not mention this in the medico-legal report Exh.P.A. On the other hand, it is strange that the appellant was said to have been apprehended at the spot with the revolver and the crime empty in its chamber, yet there is no explanation as to why the same was not sent to the Fire-arm Expert. This circumstance caused a suspicion about appellant's apprehension at the spot. Even otherwise, prosecution story about appellant's apprehension at the spot did not inspire confidence because it was highly improbable that Islamud Din who was armed with a revolver after having fired at Inayat fired two more shots which did not hit any one, as such would he be easilyb captured by those who had no formidable weapon. On the contrary, none would have dared to go near him. There is yet another circumstance which cannot be lost sight of i.e, no attempt was made to make, report at the police station till the medico-legal report of Inayat was obtained from the doctor. This circumstance would show that the F.I.R. Was belated and was made after due consultation. According to P.W.6 Muhammad Niaz nephew of the deceased, he was assisted in apprehending Islamud Din at the spot by P.W.7 Barkat Ali, P.W.9 Abdul Wahid and Muhammad Bashir given up as being unnecessary.
After appellant's apprehension Inayat the injured was sent to the hospital through P.W.10 Sadiq and P.W. Muhammad Boota (given up as having been won over). Informant and the three afore- mentioned eye witnesses remained at the spot with the accused till Inayat deceased had been examined and the medico-legal report was obtained. It was thereafter that Inayat's nephew P.W.6 Muhammad Niaz (Informant) went to make a report. Had NiazF P.W. a nephew of Inayat been at the place of occurrence then he would have accompanied his uncle to the hospital but instead P.Ws Sadiq and Boota who had no connection with Inayat took him to the hospital. Not only that the F.I.R.
Was belated and made after du consultation, the aforementioned circumstances also indicated that the informant and others in all probability were not present at the scene of the occurrence. At this stage, it may also be mentioned that the trial court made the observation that P.W.7 Barkat and P.W.9 Abdul Wahid were chance witnesses and they also had no occasion to be present there at that hour of the night yet it placed reliance on their statements because their evidence was corroborated by the statement of P.W.10 Sadiq, who lived in the vicinity and who is named in the medico-legal report Exh.P.A. As one of the persons who brought Inayat to the hospital at 2-30 a.m.
That night. It appears that in placing reliance on P.W.10 Sadiq, trial Court lost sight of the fact that P.W.10 Sadiq was not an eye witness of the occurrence. He claimed to be a resident of the vicinity and according to him when he reached the place of occurrence, he saw Inayat lying on the ground with an injury in the abdomen and a revolver lying near him, and upon enquiry Inayat told him that Islamud Din had fired at him. The witness added that Boots P.W. Also reached there with whose help Inayat was placed in a rickshaw and taken to the hospital where Inayat was examined and at about 4-15 a.m. He obtained the medico-legal report and returned to the place of occurrence. It is noteworthy that neither in the F.I.R. Nor in the statement of other witnesses it was mentioned that Inayat named his assailant. This omission also reflected on the question whether Inayat was fit to make a statement which is further supported by the other circumstances appearing in the evidence of the doctor. According to him, Inayat was not unconscious but he admitted that he was uncertain about the weapon used against injury No,1 yet he did not question the deceased about the weapon with which he was hit. This circumstance also makes it doubtful whether Inayat was in a fit state to make a statement. Whether P.W.10 Sadiq reached the place of occurrence on hearing the report of the fire was also a doubtful matter because according to this witness, he had a handloom (Khadi) in the Kachi Abadi but had his house in the Kanak Mandi which is though not far away from the place of occurrence but is farther than the Kachi Abadi. In his police statement, he had said that he slept in his house that night but at the trial, he supported his statement by saying that he had slept at the Khadi. When questioned about his other family members, he could not state where they slept on the night of the occurrence. It is further noteworthy that in his statement Exh.D.C. Before the police, his address is given as "Talab Paniwala Bastin. Keeping in view these contradictions and improvements, the presence of P.W.10 Sadiq was also not free from doubt. His presence in the hospital did not prove his presence at the place of occurrence at the time of the occurrence or even a little later. He may have taken Inayat injured to the hospital but this alone was not enough. As such, trial court's finding is erroneous that the statement of P.W.10 Sadiq was independent corroboration to the statements of P.W.6 Muhammad Niaz, P.W.7 Barkat and P.W.9 Abdul Wahid.
8. Last but not the least, there is no blood-stained earth taken from the place of occurrence which aroused suspicion about the place of occurrence. Although, there is no enmity of the witnesses with the accused yet for the inherent improbabilities in the prosecution case with regard to the apprehension of the appellant and the presence of the witnesses coupled with the delay in making the F.I.R. And the fact that though the revolver was said to have been recovered yet it was not sent to the Fire-arm Expert, thus for these reasons, the prosecution case was highly doubtful, benefit of which is given to the appellant who stands acquitted.
9. Since the other learned Member of the Bench has ceased to remain on the Bench, the aforementioned were the reasons in support of the short order by means of which the appeal was accepted, conviction and sentence of the appellant was set aside. He was acquitted of the charge and ordered to be released.