This Criminal Appeal No. 526 of 1983 and connected Criminal: Revision No. 105 of 1984 by Muhammad Amin against the acquittal the co-accused, arises from the judgment of learned Sessions Judge --Okara, whereby he on 4-8-1983 while acquitting Muhammad Aslam Muhammad Boota, Muhammad Ashraf, Bagga and Sakhi Muhammad the charge, convicted Farzand Ali appellant (25) under section P.P.C. For the murder of Shaukat Ali and sentenced him to imprisonment for life and a fine of Rs.1,000 in default thereof four months R.I. He was directed to pay Rs.2,000 as compensation under section 544-A-- Cr.P.C. To the legal heirs of the deceased or six months' R.I.
I propose to dispose of them through single judgment.
2. The occurrence took place on 25-4-1981 at about Rotiwela in area of village Ruri of Police Station haveli. The distance between v place of occurrence and the Police Station is 16 miles. The F.I.R.
Exh.P.K was lodged by Muhammad Amin P.W.6 father of the at the Police Station and was recorded by Mirza Ghulam Ali S.I. P.W. 12 on the same day at 4.30 p.m.
3. The prosecution has alleged two-fold motive that two days before the occurrence it was the turn of the water of Farzand Ali appellant and Aslam acquitted accused when Muhammad Ashraf P.W.8 son of Muhammad Amin complainant had cut the canal water and diverted it to his fields. On the following day Farzand Ali appellant had complained before Muhammad Amin that his son Muhammad Ashraf P.W.8 had cut the water and irrigated his fields. On this Muhammad Amin complainant tried to convince the appellant that his son had no hand in the matter.
The appellant, however, was not satisfied. The other motive was disclosed at trial stage. It was alleged that Gama, maternal grandfather of the were of Farzand Ali appellant had five daughters, who inherited the entire land of Gama. Suleman, father-in-law of Farzand Ali appellant got land of the four daughters of Gama either transferred in his favour or brought under his control. The land devolved upon the were of Muhammad Amin complainant was transferred by her to Shaukat Ali deceased. Farzand Ali appellant wanted that this land should have been given to Suleman his father-in-law, hence this occurrence.
4. As far the main occurrence, it has been stated that on the eventful day a Punchayat comprising of Haji Amanat Ali P.W.6, Dost Muhammad and Wali Muhammad (both not produced) and others was convened to consider complainant made by Farzand Ali appellant that Muhammad Ashraf P.W.8 had cut the canal water and irrigated his land. In the course of the proceedings, someone informed that Safdar P.W. Another son of Muhammad Amin complainant was being beaten and forcibly taken away by Muhammad Boota, Muhammad Ashraf, Bagga and Sakhi Muhammad acquitted accused, from his thrashing flour towards their well. On this Haji Aamanat Ali P.W.6, Dost Muhammad, Wall Muhammad, Mullammad Amin complainant, Muhammad Ashraf P.W. And Shaukat Ali deceased ran towards that side to save Safdar Ali P.W. Shaukat Ali deceased was ahead. All of a sudden, Farzand Ali appellant armed with a gun and Muhammad Aslam acquitted accused armed with a rifle emerged from behind a Keekar tree. Muhammad Aslam fired at Shaukat Ali deceased but the shot did not hit him. Farzand Ali appellant then fired a shot from his gun hitting Shaukat Ali on his left flank who fell down on the ground. Shaukat Ali was then removed to the hospital where he succumbed to the injuries on 3-5-1981 at 1.30 p.m.
5. Dr. Muhammad Afzal Malik P.W.3 had examined Shaukat Ali on 25-4-1981 at 2.30 p.m. When he was alive. He found; "A fire-arm wound 3/4 c.m. Diameter on the front of abdomen on left side, with .12 bore. This was an entry wound. A big pellet was removed from the flank under the skin. The injury was kept under observation. It was caused by a fire-arm within about two hours of the examination.
On 4-5-1981 the same Doctor conducted post-mortem examination on the dead body of Shaukat Ali. He found following injuries on his person.
(1)One stiched wound having three stiches on the left side of the abdomen as mentioned in E.P.C.
(2)One stiched wound having two stiches in the right flank from where pellet was recovered at the time of examination.
(3)A 20 c.m. Long stiched wound of operation having 16 stiches and 4 tensions stiches passed through the tube on the right side of abdomen. It was a right paramedian decision".
On 26-4-1981 Dr. Ali Arshad Rashid P.W.4 had examined Safdar Ali P.W. At 12-30 p.m. He found four abrasions and tenderness on the right buttock. All the injuries were simple in nature and were caused by blunt weapon within 48 hours of the examination.
6. Farzand Ali appellant was arrested on 20-5-1981 by Mirza Ghulam Ali S.H.O. On the same day he led to the recovery of gun P.3 from his house which was taken into possession, vide `memo. P.F.
Attested by Haji Noor Muhammad P. W.5 and Muhammad Nawaz (not produced). The recovery was effected by Mirza Ghulam Ali S. H.O. P. W.12.
7. To prove its case, prosecution examined 12 witnesses. Amanat Ali P.W.6, Muhammad Amin P.W.7, Muhammad Ashraf P.W.B and Safdar Ali P.W.9 have given the ocular account of the occurrence.
They have supported the double motive as well as the main occurrence as detailed above. Noor Muhammad P.W.5 and Mirza Ghulam Ali S.H.O. P.W.12 have stated that the appellant had got recovered gun P13 from his house. It may be noted that no crime empty was recovered from the spot and as such recovery of gun from the appellant is of no consequence. Mirza Ghulam All S.H.O.
Also proved Exh. P.M. The alleged dying declaration recorded by him in the hospital on the day of occurrence. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised plea of false implication on account of enmity. In reply to question No.10 he stated: "I have been falsely involved in this case. Begga, and Sakhi co-accused cultivate my land Safdar P.W. Had stealthily cut the water. My tenants took an exception to this and had a dispute with Safdar P.W. There was a scuffle also on this issue. Safdar and his brothers and other kith and kins procured the services of some hooligans like Kamala, Ilyas, Muhammad Din who are notorious bad character and sat in ambush in the Burseem field and the fields around the path leading to the village. The aforementioned person in order to show their force and overawe fired and a stray pellet hit Shaukat as a result of which he died. I being a landlord and while as Aslam being my relation falsely have been involved in this case. Bagga, Sakhi and Ashraf are also innocent. They have been involved in this case because they are my tenants and they had taken exception to the theft of water committed by Sadar P.W. And his brother. I and all the other accused are innocent.
Aslam cc-accused reside in Jammon Wachal he has got no business in village Ruri. He neither cultivates nor resides in village Ruri."
9. The learned trial Court has disbelieved the incident of the beating of Sardar Ali P.W.9 by the acquitted accused and the factum of the information of the incident given to the eye-witnesses during Punchayat proceedings. The trial Court has also not believed Safdar Ali P.W.9 and the alleged dying declaration Exh. P. C. The trial Court has also disbelieved the presence and participation of Muhammad Aslam co-accused. In the occurrence. While believing the motive, the eye-witnesses other than Safdar Ali P.W.9 to the extent of the participation of Farzand Ali appellant has convicted and sentenced him as stated above.
10. The learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant inasmuch as the story of the information of the alleged incident of beating and abduction of Safdar Ali which had attracted the eye-witnesses to the spot having been disbelieved by the trial Court there was no occasion for the eye-witnesses to be present on the spot; that the medical evidence also falsifies the claim of the eye-witnesses, that they had seen the appellant firing at Shaukat Ali deceased and that there is no independent corroboration of the statements of the eye-witnesses. Conversely the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial court. The learned counsel for the complainant maintained that the eye-witnesses are reliable; that the incident of the beating and abduction of Safdar Ali P.W. Has been disbelieved by the trial Court without cogent reason; that Safdar Ali being injured his evidence could not have been rejected and that there is no material contradiction between the statements of the eye-witnesses and the medical evidence.
The learned counsel for the complainant requested for the re-trial of the acquitted accused.
11. I have considered the submissions made by the learned counsel for the parties with care. I find that the learned trial Court after having applied its conscious mind to the evidence and the circumstances of the case has rightly disbelieved Exh .P.C. The dying declaration. Safdar Ali P.W.9 and the alleged incident of his beating by Ashraf, Begga, Sakhi and Boots acquitted accused. The learned trial Court has given sound and cogent reasons in this behalf. Since Haji Amanat Ali P.W. 6, Muhammad Amin P.W.7 and Muhammad Ashraf P.W.8 have claimed to have witnessed the occurrence, therefore the first question to be considered is whether in fact they saw the occurrence. The prosecution case is that just before the main occurrence, the aforesaid witnesses were present in a Punchayat at sufficient distance from the spot and it was on the information by someone about the alleged incident of the beating and abduction of Safdar A1: P.W.9 that they left the place of Punchayat for the place of occurrence. If the incident of the alleged A beating of Safdar Ali which had led the eye-witnesses to the place of occurrence is disbelieved or excluded from consideration then there remains no probable cause for the presence of the eye-witnesses on the spot of the murder of Shaukat Ali. There is yet another strong, reason to doubt that the eye- witnesses in fact saw the occurrence in that according to them the appellant and Muhammad Aslam had emerged from behind a Keeker tree which was at a distance of one acre from the place where Shaukat Ali received fire-arm injury. Muhammad Amin P.W.7 has no doubt stated that Asian', acquitted accused had fired the shot after having covered a distance of 72113 Karams from the Keeker tree and then the shot was fired by Farzand Ali hitting the deceased. If this version is accepted even then Farzand Ali had fired from a distance of 27/28 Karams which approximately comes to 148/253 feet. According to the Medical Jurisprudence by Modi last para. Of page 220 B of 1975 edition: "As the distance of increases damage caused by a single pellet diminishes until at about 30 feet. It is only capable of penetrating the clothes and skin of the victim."
It may be noted that in the case in hand the medical evidence is to the effect that there was a fire- arm wound 3/4 c.m. Diameter on the front of abdomen on left side and a big pellet was removed from the flank, so the damage done to the deceased by the shot allegedly fired by Farzand Ali, falsifies the claim of the eye-witnesses that they had seen the appellant firing at the deceased.
Since tile evidence of the eye-witnesses to the extent of the participation of Muhammad Aslam co- accused has been disbelieved by the trial Court and that too for good reasons, therefore, the rule of prudence also requires independent corroboration of the statements of the eye-witnesses qua Farzand Ali appellant which I do not see in the case in hand. Motive being a double-edged weapon cuts both the ways and its benefit may not tae given to the prosecution in the peculiar circumstances of the case. It may be noted that the prosecution case on the point of motive is also not consistent. At trial stage another motive was introduced which eras not mentioned in the F.I.R.
For all these reasons, I am of the view that the prosecution has not been able to prove its case even against Farzand Ali appellant beyond reasonable doubt.
12. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of Farzand Ali appellant, he is acquitted of the charge. Resultantly the connected revision fails.