' SARDAR MUHAMMAD DOGAR, J.---F.I.R. Exh.PA./1 was registered at Police Station Karianwala, district Gujrat by Muzaffar Hussain, M.H.C. At 12-00 noon on 15-10-1984, on receipt of statement Exh.PA. Of Mst. Khurshid (P.W.1) widow of Ghulam Hyder, recorded by Mushtaq Ahmad, S.H.O. (P.W.10) at 11-00 a.m. At Bhagowal, on the same day.
' According to F.I.R. Ghulam Hyder (deceased) resident of village Natt, after retirement from the Army, purchased 21 marlas of land, situated in the area of village Gujgran, from Faiz and took up residence there after constructing a house. Muhammad Sharif alias Sharabi, cousin of Faiz filed a civil suit against him which was fixed for 16-10-1984. Muhammad Sharif had told Ghulam Hyder twice/thrice that he had wasted money on construction of the house and ultimately the land and the house will become his (Sharif's) ownership. Disputes used to occur between the two over this.
7-8 days before the occurrence, Muhammad Sharif came to the house of the deceased on the pretext of taking bath under the water-pump and left the house after having its survey.
' The complainant was sleeping in the verandah of her house alongwith her husband Ghulam Hyder (deceased) and Muhammad Boota son, aged 17-18 years, during the night between 14th and 15th of October, 1984. The complainant woke up at 11-00/12-00 p.m. On barking of dog, and awoke her husband as well as her son. A lantern was burning. They saw three persons scaling over the western wall. One of them was recognised by them as Muhammad Sharif alias Sharabi. He was armed with a gun. Regarding the other two she stated that her son and she will be able to identify them (accused) if produced before them. She gave their identification marks as well. Out of the two unknown persons, one was armed with a pistol while the other was empty-handed. Ghulam Hyder and Muhammad Boota went ahead and enquired from them as to why they had entered their house at such late hours? Muhammad Sharif fired a shot from the gun which struck Ghulam Hyder on the abdomen. He fell down and died. The complainant and her son grappled with Muhammad Sharif and raised alarm. His companions ran away by scaling over the wall. The complainant and her son snatched the gun and a woollen Chaddar from Muhammad Sharif.
During the struggle, Muhammad Sharif caused injuries to the complainant with kicks and fists.
Muhammad Sharif after getting himself released, ran away through stairs.
' Muhammad Boota went to village Natt and brought his relatives. Many other persons also came to the spot. It is stated towards the end of the F.I.R. That she could not go to the Police Station because of non-availability of conveyance, due to night time. Ghulam Ghaus and Fateh Khan were accompanying the complainant when she had met the S.H.O. And made statement Exh.PA.
2. Mushtaq Ahmad, S.I. After despatching statement Exh.PA. To the Police Station, went to the spot.
He despatched the dead body for post-mortem examination after preparing injury statement Exh.P.H. And inquest report Exh.P.H./1. Blood-stained earth was also collected by him from the spot vide memo Exh.P.B. Gun P.1 and Chaddar P.2 belonging to Muhammad Sharif accused were also taken into possession vide memo Exh.P.C. He also prepared injury statement Exh.P.J. Of Mst.
Khurshid and sent her for medical examination.
' Muhammad Sharif was arrested by him on 9-11-1984. Challan was submitted to Court against Muhammad Sharif alias Sharabi.
3. Mst. Khurshid widow of the deceased was not satisfied with the investigation. She, therefore, filed complaint Exh.P.A./1 direct to the Court under section 302/34, P.P.C. Against Muhammad Sharif alias Sharabi, Bashir son of Khushi Muhammad and Bashir son of Lal. After recording preliminary evidence, all the accused named in the complaint were summoned to face the trial.
4. The case was entrusted for trial to the Court of Mr. Muhammad Aslam Sumra, Additional Sessions Judge. Learned trial Judge held trial consolidating the challan case and the complaint.
' Vide judgment, dated 21-9-1987, Bashir son of Khushi Muhammad and Bashir son of Lal were acquitted while Muhammad Sharif alias Sharabi was convicted under section 302, P.P.C. And sentenced to imprisonment for life plus to pay a fine of Rs,5,000 in default whereof to undergo S.I.
For three months. Whole of the fine, on recovery, was directed to be paid as compensation to the heirs of the deceased.
5. The convict filed appeal. The complainant preferred a revision petition, wherein prayer was made for enhancement of the sentence of imprisonment for life awarded to Muhammad Sharif, to death. The revision petition was admitted and notice was issued to Muhammad Sharif. Both the matters are being disposed of together.
6. Statements of ten P.Ws. Were recorded at the trial.
' Dr. Arshad Mahmud Shariq, who had performed autopsy on 15-10-1984, appeared as P.W.9. He had noted a firearm wound of entry 4 x 4 cm circular in shape with inverted margins on the left side of the front of abdomen, with intestines coming out.
' Eight metallic foreign bodies lying in the right lower abdomen and pieces of card wads lying just in front of the vertebral column, were removed from his body. Death was opined to have occurred due to shock and haemorrhage resulting from the firearm injury.
' Probable time between the injury and death was opined to be immediate while the time between death and post-mortem was opined to be within about 14 to 18 hours.
' During cross-examination he stated that blackening, charring and tatooing is caused when a shot is fired from a distance of six feet. He, however, stated that he had not found blackening, charring and tatooing around the wound. He expressed inability to describe the type of firearm weapon used for infliction of injury.
7. Dr. Muhammad Iqbal, who had medically examined Mst. Khurshid on 16-10-1984 at 10-30 a.m.
Appeared as P.W.B. He had noted an abrasion with swelling on the left side of chin, an abrasion on the inner side of right chin, an abrasion on the left knee, another abrasion on the medial side of left foot and complaint of pain over the right shoulder.
' According to his opinion the injuries were simple and had been caused by a blunt weapon within a duration of about 2 days. During cross-examination he stated that the injuries might have resulted from a fall.
8. Ocular account was deposed to by Mst. Khurshid P.W.1 and Muhammad Boota P.W.2.
' Mst. Khurshid by and large, repeated the facts given by her in the F.I.R. And the complaint (Exh.P.A.).
During cross-examination she stated that she had learnt the names of Bashir son of Khushi Muhammad and Bashir son of Lal 2-3 days after the occurrence. According to her, she had identified them in the identification parade held at the Police Station and at the spot by the Thanedar. She denied the suggestion that the appellant was declared innocent during the investigation by Mushtaq Ahmad, S.I., Arshad Shah, Inspector and Muhammad Iqbal, D.S.P. She admitted that the appellant had produced in defence about 300 persons which included three members of the Union Council. She, however, denied the suggestion that special oath on Holy Quraan was taken by 30-40 persons about innocence of the appellant. She denied the suggestion that the appellant was in Chak No,101/M.L. Tehsil Kahror District Layyah. She admitted that 50-60 persons of that Chak had appeared before the Police in defence of the appellant. While admitting that she knew Muhammad Sharif alias Baggu of village Dhool, she denied the suggestion that she had illicit connections with him. According to her, Police Post Tanda was 2 miles away from the place of occurrence, while village Natt was at a distance of 3 miles. She denied the suggestion that the inhabitants of the village had boycotted her due to immorality since 10 days before the occurrence. She stated that she had produced papers before the Police, relating to the filing of suit by Muhammad Sharif, against her husband. While denying the suggestion that no suit had been filed by Muhammad Sharif, she stated that truth of the matter was that Muhammad Sharif had asked a lawyer of Gujgran to bring a suit. In answer to another question she stated that she had not informed the neighbours about the occurrence. She stated that she had sent her son to inform the relatives as she had to consult them. According to her, gun and Chaddar were produced by Fateh Khan (brother of her husband). She admitted that neither her clothes nor those of Muhammad Boota were torn during the scuffle. She gave the height of walls of her house to be 7 feet. She denied that she had not witnessed the occurrence.
9. Muhammad Boota corroborated the statement made by his mother in so far as it pertained to the actual occurrence. During cross-examination he stated that his mother had sent him to inform his uncles about the occurrence but she had not asked him to go to the Police. According to him he had reached village Natt before sunrise, after covering a distance of 2 k.m. On foot. According to him no person had come to the spot by the time he had left for village Natt. He stated that his mother and others had started for the Police Station at 6-30 a.m. After his return, from village Natt and that the police arrived at the spot at 11-00 a.m. He admitted that the statement of his mother was also recorded at the spot. He expressed ignorance about appellant having taken the plea of alibi by stating that he was in Chak No,101/M.L. Tehsil Kehror, District Layyah. He denied the suggestion that the Inspector had told them that Abdul Sattar and Rai Sadiq two lawyers of Layyah had made statements in defence of the accused. He denied the suggestion that the assailant was unknown and they had cooked up a false story.
10. Khan Bahadur resident of village Bhelpur situated at a distance of 6 miles from the place of occurrence, who appeared as P.W.4, claimed to have witnessed the collection of blood-stained earth from the spot vide memo Exh.P.B. And gun (P.1), Chaddar (P.2) and crime empty (P.3) vide memo Exh.P.C. During cross-examination he admitted that Mst. Khurshid was daughter of his maternal-uncle. He stated that when he had reached the spot early in the morning, a constable was present there. According to him he had been sent for by Mst. Khurshid. He expressed inability to state as to how long after his arrival the Thanedar had reached the spot. According to him, gun and Chaddar had been picked up by the Constable and produced before the Investigating Officer.
He stated that the empty was also with the Constable. He denied the suggestion that he had made a false statement.
11. Mushtaq Ahmad, Si. Who had investigated the case at the spot after recording statement Exh.P.A.
Of-Mst. Khurshid, had taken into possession bloodstained earth, gun and Chaddar from the spot and had effected arrest of the appellant on 9-11-1984, appeared as P.W.10 and deposed those facts. During cross-examination he stated that he had accepted the version of innocence of the appellant after recording statements of 33-34 persons produced by him (the appellant). He admitted that the appellant had told him that he was in a Civil Court at Layyah on the day of occurrence. He stated he had reached the spot at 11-15 a.m. And found a Chaddar lying at the spot.
The statements of the remaining P.Ws. Are more or less of a formal nature.
12. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He denied that gun P.1 and Chaddar P.2 were snatched from him at the spot. He did not claim that the articles belonged to him. According to him he had long- standing enmity. He added that during the night of occurrence he was in Chak No,101/M.L. Tehsil Kehror, District Layyah in connection with the suit pending in the Court of Civil Judge, Layyah. He examined in defence three D.Ws. And produced documents also in defence. The acquitted accused also denied the prosecution case as a whole and pleaded innocence.
13. Ch. Abdul Sattar, Advocate and Muhammad Sadiq, Advocate practising at Layyah appeared as D.W.1 and D.W.2. Both of them made statement in support of the plea of the appellant, that he was at Layyah on 14-10-1984 and 15-10-1984. D.W.1 also stated that he had stayed for the night with one Allah Ditta son of Said. They gave the details of the suit for the pursuit of which the appellant had gone there. During cross-examination he denied the suggestion that they had made false statements.
14. Muhammad Iqbal Khan, D.S.P.(D.W.3) stated that during the investigation by him, Muhammad Sharif had taken the plea that he was in Tehsil Layyah in connection with some personal job.
According to him he had deputed an A.S.I. To go to Layyah and- verify said facts. During cross- examination he admitted that name of the appellant was placed in column No,3 of the challan.
15. We have considered the contentions raised by learned counsel for the parties after having gone through the evidence with the assistance of learned counsel for the appellant.
' The prosecution failed to prove at the trial, sharp allegation levelled against the appellant of having filed a civil suit against the deceased regarding purchase of land on which he had constructed a house. Neither copy of the plaint filed by the appellant nor copy of the written statement filed by the deceased in that suit was produced at the trial nor anything else was adduced in evidence to prove the contention of the prosecution that the appellant was in litigation with the deceased prior to the occurrence. Mst. Khurshid during cross-examination claimed that she had stated while lodging the F.I.R. That the appellant had instructed a lawyer to file a suit. In the circumstances not only the argument of learned counsel for the appellant that the prosecution had failed to prove motive for the occurrence, possesses weight but his contention that the complainant had wrongfully stated that the suit was fixed for 16-10-1984, was also proved to be incorrect, possesses substance.
16. The occurrence according to the prosecution had taken place sometime at 11-00 or 12-00 during night. Report was not lodged till 11-00 a.m. On the following morning. Police Post 'rands was at a distance of 2 miles from the place of occurrence. It was moonlit night. Apart from the complainant, his grown-up son Muhammad Boota aged 18 years was in the house. He could have gone to lodge the report. Even if it be considered logical that the complainant or his son could not have gone to the Police Post during night and it was necessary and advisable as well, for them to have first informed the brothers and other relatives of the deceased residing at village Natt which was at a distance of 3 miles from the place of occurrence; the occurrence should have been reported early in the morning because it is the case of both mother and the son that the son had gone to inform the relatives at Natt at Fajar prayer time and had returned by 6-30 a.m. Alongwith the relatives. Mst. Khurshid and Muhammad Boota knew the name of Muhammad Sharif very well.
They had snatched gun and Chaddar also from him. There should, therefore, have been no hesitation for them to have at least gone to lodge the report soon after the arrival of the brother and nephew of the deceased. Had anyone of them done so, the report would have been lodged by 7-30 a.m. If not prior to that. Their not having gone to lodge the report for 5 hours, even after the arrival of brother and nephew of the deceased in the village, casts grave doubts about their claim of having identified the assailant, i.e, the appellant, inflicting injury to the deceased.
The delay in lodging the F.I.R. In the circumstances noted above, is very material and cannot be ignored.
17. Except the assertion of Mst. Khurshid and Muhammad Boota no evidence was led at the trial to prove that gun P.1 and Chaddar P.2 belonged to or were the property of the appellant. If these two articles had been in possession of the appellant before the occurrence and he was using them, anyone from the village could have been examined to state that he had seen the appellant being in possession of those articles or using them. This appears to be material in view of the inconsistency in the statements of witnesses about the collection of these articles by the Police.
There is evidence on record that Fateh Khan had produced these articles before the Police; then there is the statement of Bahadur Khan that a Constable had picked up these articles from the spot and produced before the Investigating Officer in his presence and last of all is the language of memo. Exh.P.C. According to which these articles were found lying at the spot near the dead body.
18. There is no doubt that Mst. Khurshid and Muhammad Boota being inhabitants of the house were most natural witnesses. It is also a fact that except the allegation levelled by the complainant that the appellant was unhappy with the deceased on his having purchased the land from his cousin, nothing is on record to consider that they were inimically disposed towards each other, but such facts also, in our view, do not warrant maintenance of conviction of the appellant as the statement made by the complainant about the motive has not been found to be true, and the F.I.R. Appears to have been lodged in shady circumstances, coupled with the fact that the articles said to have been snatched from the assailant were not proved to be the property and belongings of the appellant. The fact of the appellant having committed the occurrence, appears to be cloudy, also for, the reason that two of the Police Officers who had first investigated the case, had found the appellant to the innocent and the third i.e, the D.S.P. Who had allowed the placing of name of the appellant in column No,3 of the challan, had also accepted the alibi plea of the appellant.
19. The appellant in this case while denying his participation had not only produced evidence in support of his plea of alibi before the Investigating Officers but had also examined two Advocates and a D.S.P. In defence at the trial. He had also produced documents regarding the suit filed by his son at Layyah for the I pursuit of which he had gone there.
' The Advocates of Layyah were neither related to the appellant, nor interested in him for any special personal connections. They had fully corroborated the plea of alibi advanced by the appellant.
20. For all the reasons noted above, grave doubts have arisen in our mind about participation of the appellant in the occurrence. The appeal filed by him is, therefore, allowed, and he is acquitted.
He shall be released forthwith if not required in any other case.
21. Since conviction of the respondent (appellant in Crl. Appeal) has not been maintained, question of enhancement of sentence from imprisonment for life to death, does not arise. The revision petition, therefore, fails and is dismissed.