Sardar Muhammad Dogar, J.- Khan alias khanu and his son Dilmir aged 35 years w'crc tried by Addl. Sessions Judge, Jliang, along with Akram, Dosa and Mahni sons of Khan and one Muhammad Nawaz for having murdered Muhammad Ishaq at 6/7-00 p.m. On 18-5-1984 in the fields in the area of village Fatta Kot Taja at a distance of 12 miles from Police Station Bhawana, district Jhang.
Learned trial Judge vide judgment dated 12-1-87 convicted Khan alias Khanu and Dilmir under Section 302/34 PPC and sentenced both of them to imprisonment for life plus a fine of Rs.5000/- cach in defauIt whereof to suffer R.I. For one year each. Whole of the line, on realization, has been directed to be paid as compensation to the heirs of the dcceasc.Thcir co-accused were acquitted vide same order.
2. The convicts have filed appeal.
3. F.I.R.Ex. PD was recorded at Police Station Bhawana on 18.5.84 at 11-00 p.m. By Saccd Akhtar, S.I./ S.H.O. PW9 on the statement of Jaffar PW6. According to F.I.R.The complainant along with his deceased son Muhammad Ishaq started at 6/7-00 p.m. On the day of occurrence, from his Bchak which he had set up in the land taken by him on lease from Sohna leaving PWs Muhammad Yaqub and Talib to look after the cattle.When they had covered a distacc of one Killa from the Beliak, they were confronted by Dilmir appellant armed with a carbine and Khan appellant and the four acquitted accused empty-handed. Khan appellant on coming near to Ishaq raised a lalkara that he will be taught a lesson today for cuItivating illicit relations with his wife Mst. Aslam, simuItaneously Dosa exhorted Dilmir to murder him, whereupon Dilmir fired a shot from the carbine which struck Muhammad Ishaq on the right wrist and right side of the chest.He fell down. The accused ran away raiseng lalkaras.
The occurrence, apart from the complainant was also witnessed In Muhammad Yaqub and Talib P.Ws, who had also reached there.Muhammad Ishaq died on the spot.
4. Motive for the occurrence was the suspicion of Khan and his sons against the deceased of having illicit relations with Mst.Aalan wife of Khan.
5. Saccd Akhtar SHO after recording the F.I.R, proceeded to the spot. He entrusted the dead body for post-mortem examination, after preparing injury statement Fx. PG and inquest report Ex. PH. Blood- stained earth was also collected by him from the spot.
Muhammad Nawaz, Dosa and Mahni were arrested by him on 2-6- 84 while Akram was arrested on 23-6-84. The warrants of arrest of the appellants were obtained by him on 6-6-84.Khan appellant after arrest on 3- 7-84 led to the recovery of 12-bore gun (P.3) which was taken into possession vide memo Ex. PC, (the date of their arrest has not been stated by the S.I.) After completion of necessary investigation the challan was put to Court.
6. Statements of nine prosecution witnesses were recorded at the trial.
Dr. Zafar Ahmed,who had performed autopay on 19-5-84, appeared as PW1. He had noted following injuries on the body of the deceased.
1. A through and through wound on the right forearm, a little below its middle. On the back,it was 8 c.m. x 4 c.m. And on the front it was 9 c.m.x 5 c.m. Both the bones of the forearm were fractured.
2. Six rounded wounds in an area of 8 c.m. x 6 c.m. Each of them was about 1 1/2 c.m. In diameter,on the front and middle of right chest. Two wounds of slightly a Diptical Shpe.
3. A swlling in an area of 23 c.m. x 23 c.m. On the back and outer side of the left chest.
4. A swelling of 18 c.m. x 15 c.n. On the left outer side and front of abdomen.
On opening, 6th, 7th and 8th ribs were found fractured. Pleurae was found perforated. 7 pellets were recovered from the body, one from one place and six from the other place.
Seath was opined to have resuIted due to the haemorrhage and shock resuIting from injury No.2.
Injury No.1 was declared grievous.Injurics No.3 and 4 were opined to have resuIted from injuries No.1 and 2.
Probable time between the injuries and death was opined to be a minute or so while between death and post-mortem it was opined to be within 20 hours.
During cross-examination he stated that there was possibility of injuries No.1 and 2 having resuIted from two shots.
7. The ocular account was stated by Jaffar complainant (PW6) and Muhammad Yaqub PW7. Jaffar repeated the facts given by him in the F.I.R. He also stated about having identified the dead body at the time of post-mortem examination.During cross-examination he admitted that Muhammad Yaqub PW was son of his brother while Talib was son of his maternal uncle.He also stated that Sohna, his landlord had also a Dera in the land which he had taken on Batai and he had also his house/residcnce at the Dera. He stated that at the Dera he used to stay for the purpose of cuItivation and to operate his loom. He added that he had shown to the draftsman his Dera, cattle Bchak and Khaddi. He gave out that Khan appellant had five sons and a daughter. Akram, the eldest, out of them, was aged 50 years, while the youngest one was 17-18 years old, and was of the age of his deceased son. He conceded that no inhabitant of the village had ever complained to him about the immorality of his wife and that he had learnt about the same at the time of occurrence. In answer to another question he stated that the deceased was fired at from a very short distance, i.e. 2-4 Balishts. He denied that gun was used in the occurrence as weapon of crime.
He denied the suggestion that during the investigation it was found that he was not present at the spot.
Muhammad Yaqub PW7 who is admitted to be nephew of the complainant, corroborated the statement made by Jaffar PW. He admitted that he was living in Chiniot after the occurrence but denied that he was living there even during the days of occurrence. According to him, the complainant had esablished his Behak in the land only 5-6 days prior to the occurrence. He gave out that Khaddi of the complainant was situated in his house, in village Fatta Kot Taja. He explained that neither the complainant nor Sohna owner of the land had installed any Khaddi at the Dera in the land. According to him, he was attracted to the scene on the lalkara. He conceded that he had come to know about the motive for the first time at the time of occurrence. He denied the suggestion that he had not witnessed the occurrence and the deceased was done to death by some un-known persons.
Saeed Akhtar, SHO who had registered the case, arrested the accused and got recovered gun P.3 at the instance of Khan appellant, appeared as PW9. After deposing those facts he admitted in cross- examination that during his investigation it had transpired that in fact Khan appellant had fired at the deceased and that too with a 12-bore gun and not with a carbine. In fact, during examination-in-chief he specifically stated that' on 3-7-84 accused Khan got recovered the weapon of crime, i.e. 12-bore gun (P.3).
8. The appellants during their statements under Section 342 Cr. P.C. Denied the prosecution case as a whole and pleaded innocence.
9. I have gone through the evidence and perused the impugned judgment in the light of the contentions raised by learned counsel for the appellants and the State.
Out of the eye-witnesses, Jaffar PW6 is father of the deceased while Muhammad Yaqub PW7 is first cousin of the deceased. They are the only witnesses who deposed the ocular account and gave out motive for the occurrence, also.
10. The motive, set up by the prosecution as that Khan appellant suspected the deceased of having illicit relations with his wife Mst. Aalan.
11. Mst. Aalan, according to PW6 had five sons and a daughter. Her eldest son was 50 years old while the youngest son was 17-18 years of age, i.e. Of the age of the deceased. The complainant had never heard of such a thing prior to the day of occurrence. Nobody had ever complained to him in that regard. Muhammad Yaqub PW had also come to know of that on the day of occurrence. It seems improbable rather impossible that a young boy of 17-18 years would have cuItivated illicit intimacy with a lady of more than 65 years (the age of Mst. Aalan has been recorded as 65 or more considering the fact that her eldest son was 50 years old). The motive part of the prosecution story, therefore, is highly unbelievable. Learned trial judge had also not believed the same and I find no reason to differ with that, In fact, learned counsel for the State also was not able to say much in this regard.
12. The case of the defence at the trial was that Muhammad Yaqub PW had not witnessed the occurrence as he was not living in the village during the days of occurrence and was instead residing at Chiniot, where he was running the business of furniture. AIthough Muhammad Yaqub PW admitted while making statement at the trial that he was then living in Chiniot but denied that he was living there even during the days of occurrence. Be that as it may, there is material on record which creates doubts about his having visited the Dera of the complainant on the day of occurrence and of having witnessed the occurrence. In that, Jaffar PW6 categorically stated that apart from the Behak for cattle he had a Dera also in the land which he has taken on lease. He specifically stated that he had installed a Khaddi there which he used to operate also. Muhammad Yaqub PW in this regard unequivocally stated that there was no Khaddi of the complainant at the Dera. In fact he stated that there was no Dera even and the complainant had only set up a Behak for the cattle. It may be noted here that for setting.Up a Behak for the cattle, raising of construction is not always considered necessary. He also added that even the owner, i.e. Sohna had no Dera there. His lack of knowledge about the existence of Khaddi at the Behak and the Dera goes a long way to believe that he had not gone to that Dera on the said day, because, had he, been there, he would not have failed to notice these things. If his version of visiting the Dera for helping the complainant in the collection of Bhoosa cannot be believed, his assertion of having witnessed the occurrence can also not be believed. His testimony, therefore, has got to be excluded from consideration for assessing the case of the prosecution. The prosecutioin case, thus, rest on the testimony of Jaffar complainant and the recoveries effected during the investigation.
13. The recovery of bloodstained earth in this case is of no coinsequence as neither the place of occurrence is disputed nor the same provides any clue as to who was the accused? The other recovery effected in this case was of gun P.3 from Khan appellant. That according to prosecutioin case was not the weapon of offence. In fact, according to the eye-witnesses no gun was used for the commission of murder and instead the shot had been fired from the carbine. The said recovery, therefore, also is of no corroborative value, rather it effects the credibility of the prosecution case adversely in a manner, in that, Saeed Akhtar SHO PW9 stated during cross- examination that according to his investigation it was the said gun from which the deceased had been fired at and the shot had been fired by Khan appellant. He claimed that his conclusion in this regard was ratified by D.S.P. Chiniot also. This is adverse to the prosecution version wherein it has been stated that the shot was fired by Dilmir appellant and that too from a carbine, which was not recovered.
The sole testimony of Jaffar PW therefore, remains only in the field to consider the authenticity of the prosecution version of the occurrence.
14. Jaffar PW being father of the deceased is naturally an interested witness. His testimoiny regarding motive has not been believed. The same was not believed by the trial Judge also. There is not even an rule of evidence on the record which can lend corroboration to his testimony. The S.H.O, who had investigated the case also found the statement made by him about the accused who fired the fatal shot, to be not correct. His investigation was ratified in that regard by the D.S.P, a gazetted Police officer.His claim that injury No.1 on the wrist and injury No.2 on the upper part of the chest had resuIted from one shot, also appears to be doubtful not only for the reason that it does not seem probable that someone pellet from the same shot would have struck the deceased at the lower part of the wrist while sue pellets of that would have struck him on the upper part of the chest. In fact, the matter does not end here. The recovery of 7 pellets from the body of the deceased also shows that more than 6 pellets had entered the body of the deceased 'through the sue rounded wounds' found on the chest. This conclusion is arrived at considering the fact that the pellets which had struck on the arm could not have been lodged in the upper part of the body of the deceased as the wound on the arm was through and through. Moreover, the doctor had not found that any pellet had travelled through the arm to the main body.
For all the reasons noted above, the statement of Jaffar PW6 appears to be highly doubtful narration of the occurrence and the same does not inspire confidence at all. This appeal is, therefore, allowed and the appellants are acquitted by way of grant of benefit of doubt. They shall be released forthwith if not required in any other case.