MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No.309/84, connected M.R. No.130/84 and Criminal Revision No.443/84 filed by Hidayat Ali complainant, against the acquittal of Ishtiaq and Asmat arise from the judgment of learned Additional Sessions Judge, Lahore, whereby he, on 19-6- 1984 while acquitting Ishtiaq and Asmat, convicted Nadeem Akram (16) under section 302, P.P.C. For the murder of Muhammad Akram (45) and sentenced him to death and a fine of Rs.10,000, in default thereof two years' R.I. With the direction that the fine if realized be paid to the legal heirs of the deceased. We propose to dispose of them through single judgment.
2. The occurrence took place on 17-7-1983 at 6.00 p.m. In village Sharifpura at a distance of 5 k.m.
From P.S. Manawan District Lahore. The F.I.R. Is statement Exh. P.G. Of Hidayat Ali P.W.5 recorded by Muhammad Ishaq, Inspector, S.H.O. P.W.12 on Octroi Post Lakhu Dehr at 8.00 P.M. On the same day.
The formal F.I.R. Exh.P,G/1 was drawn up at 8.45 p.m. On the same day by Rashid Baig, Moharrir Head Constable. P.W.9. The distance between the Octroi Post Lakhu Dehr and the place of occurrence is one furlong.
3. The motive as alleged by the prosecution was that Muhammad Jehangir Ali was brother-in-law of Hidayat Ali Muhammad Akram deceased was the son of the daughter of the paternal-aunt of Hidayat Ali complainant. Asmat and lshtiaq, acquitted-accused are real brothers and real uncles of Nadeem Akram appellant. The sister of lshtiaq and Asmat is were of Muhammad Jehangir Ali.
Mst. Shagufta, daughter of the maternal-uncles of Muhammad Jehangir Ali was married to Safdar, younger brother of Ishtiaq and Asmat, Safdar divorced Mst. Shagufta. On this the relations between the accused and the complainant and others became strained, hence this occurrence.
4. As for the main occurrence, it has been stated in the F.I.R. That at the eventful time. Hidayat Ali P.W.5 and Muhammad Nazir P.W.8 were sitting at the shop of Abdul Hameed P.W. 6 situated in Sharifpura. At some distance from there, Shehbaz (12) son of Hidayat Ali complainant was having a, fight wih Nadeem Akram appellant and his brother Naeem. Muhammad Riaz P.W.11 intervened and separated the children. He brought Shehbaz towards the complainant. Nadeem Akram appellant and his brother Naeem went into their houses. At this stage Muhammad Akram deceased came there. He followed Nadeem Akram and Naeem to their houses. Naaeem appellant brought out gun from his house and fired at the deceased which hit him on the right side of chest and shoulder. He fell down. Thereafter, Ishtiaq and Asmat acquitted accused came out of their house armed with carbine and revolver respectively. They raised Lalkara and started firing. Muhammad Akram succumbed to the injuries on the spot. The occurrence was allegedly seen by Hidayat Ali P.W.5, Abdul Hameed P.W.6, Muhammad Nazir P.W. 8 and Muhammad Riaz P . W .11.
Dr. Muhammad Anis Sheikh, P.W.13 conducted the post-mortem examination on the dead body of Muhammad Akram deceased. He found following injuries on his persons:- (1)"Circular lacerated wound 0.5 c.m. x 0.5 c.m. With contused abraded inverted edges on the outer aspect of upper right arm just below the shoulder.
(2)(a) Circular lacerated wound 0.5 c. m. x 0.5 c. m. With contused abraded and irregular inverted edges on the outer right arm, 4 c.m. Below injury No.1.
(b) Lacerated wound 1 c.m. x 0.7 c. m. On the inner upper right arm. Edges of the wound were everted. Both the injuries 2 (a) and 2 (b) were communicating with each other through the muscles of arm.
(3)Circular lacerated wound 0.5 x 0.5 c.m. With abraded, contused and irregular inverted edges on the outer mid right arm.
(4)(a) Oval lacerated wound 1.5 x 0.8 c.m. On the anterior axillary fold. Edges were irregular, contused and inverted..
(b) Lacerated. Wound 2 x 1 c.m. With overted edges on the anterior axillary fold (right) 4.5 c.m.
Above injury No.4 (a). Injuries No.4 (a) and. 4 (b) were communicating with each other through the subcutanous tissues.
(5)Circular lacerated wound 0.5 x 0.5 c.m. With irregular contused and abraded edges on the outer upper right chest on the anterior axillary line.
(6)Circular lacerated wound 0.5 x 0.5 c.m. With inverted edges on the outer upper chest over the mid axilllary line, 4 c.m. Outer to injury No.5.
(7)Circular lacerated wound 0.5 x 0.5 c.m. With inverted edges on the upper right chest 3 c.m.
Above injury No.5.
(8)Oval lacerated wound 1.5 x 0.7 with inverted edges, 2 c.m. Above injury No.7.
(9)Gutter shaped lacerated wound 2.5 x 1 c.m. On the front mid upper right chest. The wound was subcutaneous tissue deep."
6. On 22-7-1983, the appellant and the. Co-accused appeared at the police station and were arrested by Muhammad Ishaq, Inspector, S.H.O. P.W.12. At the time of arrest, Nadeem Akram appellant produced gun Exh.P.4 and empty Exh.P.5 which were taken into possession vide memo.
Exh.P.C. Attested by Abdul Hafeez P.4 and Hakim Din (not produced). The gun Exh:P.4 was a licensed gun of Muhammad Aslam, the uncle of the appellant. The appellant also produced licence Exh.P.6 which was taken into possession vide memo. Exh.P.D. Attested by the same witnesses. At the time of his arrest Asmat Ali produced revolver Exh.P.7 and empty Exh.P.8 which were taken into possession vide memo. Exh.P.E. Attested by the same witnesses. It may be noted that no recovery was effected from Ishtiaq co-accused.
7. To prove its case, prosecution examined 13 witnesses. Hidayat Ali P.W.5, Abdul Hameed P.W.6, Muhammad Nazir P.W.8 and Muhammad Riaz P.W.11 have given the ocular account of the occurrence. They claim to have seen Nadeem Akram appellant firing shot from his gun hitting Muhammad Akram deceased resulting in his death. Hidayat Ali, Abdul Hameed and Muhammad Nazir stated before the Court that they saw Nadeem Akram appellant and his brother Naeem quarrelling with Shehbaz. Muhammad Riaz intervened and after separating them brought him to them. Nadeem and Naeem then started for their house. In the meantime, Muhammad Akram deceased also arrived there who admonished Nadeem and Naeem at which Nadeem threw challenge to Muhammad Akram and went in his house. 2/3 minutes, thereafter, he came out of the house carrying a gun followed by Asmat and Ishtiaq who were armed with revolver and carbine respectively. Ishtiaq and Asmat Exhorted Nadeem Akram appellant to fire a shot whereupon the appellant fired an effective shot hitting the right shoulder and chest of Akram, who fell down on the, ground. Ishtiaq and Asmat Ali also fired ineffective shots at Muhammad Akram who was lying on the ground. Muhammad Riaz P.W.11 made almost similar statement. Abdul Hafeez P.W.4 and Muhammad Ishaq, Inspector, S.H.O., P.W.12 have supported the alleged recoveries from Nadeem Akram appellant and Muhammad Aslam acquitted accused. They stated that Nadeem Akram had produced gun Exh.P.4 and empty Exh.P.5 at the time of his arrest and that Muhammad Aslam acquitted accused had produced revolver Exh.P.7 and empty Exh.8. It may be noted that the report of the Forensic Science Laboratory has not been produced by the prosecution. The learned counsel for the parties have stated that the crime empties, Gun Exh.P.4 and revolver Exh.P.7 were not even sent to Forensic Science Laboratory for opinion. So recoveries from the appellant and Muhammad Aslam acquitted-accused are of no consequence. Dr. Muhammad Anis Sheikh P.W.13 has proved the post-mortem examination report. 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 the plea of false implication on account of enmity. In reply to question, "As to why the case against you, he stated:- "I have been falsely implicated in this case. In fact on the day of occurrence, after sunset Ashfaq, Ilyas son of Hadayat. Asmat and Shaukat sons of Ghulam Nabi armed with guns and carbine attacked our haveli and fired indiscriminately when in the meanwhile Muhammad Akram deceased of this case was leaving our haveli so he was hit from their fires near the outer gate of the haveli. The aforementioned four then ran away from the spot. Muhammad Akram died of the injuries there. P.Ws. Hadayat, Nazir and Riaz were not present at the spot. They were in Lahore who reached the village at about 10.00 p.m. In connivance with Hameed P.W. Then they lifted the dead body by a cot and placed the same near his shop and then lodged the false case against us. The complainant party is inimical towards us because of the Local Bodies Election even. My co- accused Asmat was on duty in Steel Shop Moghalpura at the time of the occurrence whereas my other co-accused Ishtiaq was at Lahore at the time of occurrence. At the time of the aforementioned occurrence as stated by me, alongwith my younger brother Naeem and my mother were present inside the haveli."
Asmat Ali acquitted accused produced Raees Ahmad D.W.1 in his defence in support of the plea of alibi raised by him in his statement recorded under section 342, Cr.P.C.
9. Learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, inasmuch as, the F.I.R. Was recorded after preliminary investigation; that the eye-witnesses are not reliable; that there are material contradictions/ discrepancies in the statements of the eye-witnesses and that there is no corroboration of the statements made by the eye-witnesses. Conversely, the learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the petitioner/ complainant in the connected revision maintained that the prosecution has successfully brought home the guilt to Asmat Ali and Ishtiaq, acquitted-accused and that the trial Court has acquitted them without legal and factual justification.
10. We have considered the submissions made by the learned counsel for the parties with care and have appreciated the evidence in accordance with the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases. We find that there are reasons to believe that F .I. R. Exh. P. G/1 is not a genuine document and it was not recorded at the time and place as stated by the complainant and Muhammad Ishaq Inspector, S.H.O., P.W.12 and that the same was recorded on the spot after preliminary investigation. Muhammad Ishaq, S. H. O.,P. W .12 has stated that statement Exh. P. G. Of Hidayat Ali P.W.5 was recorded by him at the Octroi post Lokhu Dehr at about 8.00 P.M. And that Muhammad Akram F.C., P.W.1, was with him when the complainant had met him there and made statement Exh.P.G Muhammad Akram F.C. P.W.1 stated that he and Muhammad Ishaq, Inspector, S.H.O., P.W.12, were present at the police station when the information of the occurrence was received there. Thereafter, he accompanied Muhammad Ishaq Inspector to the spot. Further from the circumstances that Muhammad Ishaq, Inspector P.W.12 conveniently happened to be present at Octroi- post Lakhu Dehr at a distance of only one furlong from the place of occurrence where Hidayat Ali P.W.5 met him and that the F.I.R. Was not recorded at the police station, the inference is unavoidable that, in fact, the First Information Report was recorded at the place of occurrence after preliminary investigation. Since the Inspector, S. H. O., P.
W 12 was at the police station when he received information of the occurrence, as stated by Muhammad Akram F. C., P. W.1, the question of the recording of the statement of Hidayat Ali at Octroi-post Lakhu Dehr did not arise. In view of this infirmity the evidence has to be appreciated a bit more carefully. Or careful examination, we find that the appellant had no direct motive to murder the deceased. The motive alleged by the prosecution, as stated above, is not only flimsy but also far-fetched one. Adverting to the evidence of the four eye-witnesses. We find that the statements made by them suffer from infirmities such as material discrepancies and dishonest improvements. They have shown reckless disregard for truth and the sanctity for the Oath taken by them. In the F.I.R. And in their statements recorded under section 161, Cr.P.C., they stated that after the incident of fight between the children, Nadeem Akram appellant and his brother Naeem went into their house. At that juncture Muhammad Akram deceased had come to the spot and followed them to their house. Nadeem Akram appellant brought out gun from his house and fired at the deceased who fell down and it was, thereafter, that Ishtiaq and Asmat Ali co-accused came out of their house duly armed, raised Lalkara and went on firing. Strangely enough, at trial stage, they stated that after the incident of fight between the children and before Nadeem Akram appellant and Naeem, could enter into their house, Muhammad Akram deceased met and admonished them on the way whereupon Nadeem Akram threw challenge to him and went to his house. It was further stated that after about 213 minutes, Nadeem Akram appellant armed with gun followed by Asmat Ali and Ishtiaq duly armed, came out of the house Ishtiaq and Asmat Exhorted Nadeem Akram appellant to fire a shot whereupon Akram fired an effective shot on the right shoulder and chest of Muhammad Akram, who fell down at the spot. Ishtiaq and Asmat Ali also fired ineffective shots at Muhammad Akram. From the trend of their statements before the. Court, it is very much obvious that they were bent upon securing conviction of all the accused and C have given evidence with ulterior motive. According to the F.I.R. And statements of the eye-witnesses recorded under section 161, Cr.P.C., Ishtiaq and Asmat Ali had come to the place of occurrence after Muhammad Akram had received injury and had fallen on the ground. At trial, the eye-witnesses have not only brought Ishtiaq and Asmat Ali to the spot before firing of shot by Nadeem Akram on the deceased but have also stated that Asmat Ali and Ishtiaq co-accused had instigated Nadeem Akram to fire shot and that Nadeem Akram appellant had fired shot on the deceased at their instigation. The eye-witnesses have been confronted with their earlier statements in accordance with law. We feel that the eye-witnesses are basically dishonest witnesses and have given evidence with a motive other than that of telling the truth and as such no implicit reliance can be placed on their statements. In any case, the rule of prudence requires independent corroboration of their statements qua each accused which is not available on the file.
The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant, we hold that prosecution has not been able to prove its case even against Nadeem Akram appellant, beyond reasonable doubt. So giving him the benefit of doubt, he is acquitted of the charge. He shall be released forthwith if not required to be detained in some other case. Resultantly, the revision is dismissed.
Death sentence is not confirmed.