RASHID AZIZ KHAN, J.-Nazar Hussain son of Shah Muhammad (18) and Muhammad Aslam (24) were sent up by Police Station Mangtanwala, District Sheikhupura, for trial, for the murder of Faqir Ali, Additional Sessions Judge Sheikhupura, vide his judgment, dated 29.5.1986, gave the benefit of doubt to Muhammad Aslam and acquitted him. Nazar Hussain was, however, found guilty and sentenced under section 302 PPC to imprisonment for life and a fine of Rs.25,000/- or in default 3h years R.I. It was further directed that the fine if recovered shall be paid to the legal heirs of the deceased as compensation. He was also given the benefit of section 282-B Cr.P.C, convict has appealed. Complainant has filed revision seeking sentence of death for convict. Both the matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed by Muhammad Afzal, was to the effect that he was an agriculture of village Rosa. His land was towards the east of the village Adjacent to his land, Shah Muhammad had one acre of land who wanted to make a passage for his land through the land of the first informant which they did not permit. Two days before the occurrence Shah Muhammad with his son Nazar Hussain and Muhammad Aslam forcibly tried to make the way in the said land which was resisted by the first informant and Faqir Ali. Abuses between both the parties were exchanged but Muhammad Din and Inyat separated them. Nazar Hussain appellant while leaving threatened to teach a lesson. On 18.10.1983, at about 10/11 a.m, the first informant with Abdul Ghafoor and Rehmat Ali was going towards their tubewell. In front of them; Faqir Ali was along going at a distance of 50/60 yards. When Faqir Ali reached near the tubewell, Nazar Hussain appellant armed with.12 bore gun and Muhammad Aslam(acquitted co-accused) empty handed emerged from paddy field. Muhammad Aslam raised a lalkara whereupon Nazar Hussain appellant fired hitting in the abdomen of Faqir Ali who fell down. Thereafter the assailants ran away from the spot. Faqir Ali was taken to Civil Hospital, Rehanwala, from where the doctor referred him to Mayo Hospital Lahore, as he was in a precarious condition. Injured died in the hospital.
3. The occurrence took place on 18.10.1983, at 10/11 a.m. In village Rosa which is 13 miles away from Police Station Mangtanwala. Statement Exh.PA was lodged by Muhammad Afzal PW on the same day at 4-30 p.m. At Morr Begumkot. It was recorded by Muhammad Sadiq, ASI PW-11. Formal FIR Exh.PA and EXH.PA/1 was drawn on 18.10.1983, at 6.30 p.m. By Abdul Rehman, MHC, PW-1.
4. Muhammad Sadiq, ASI PW-11, after recording the complaint Exh.PA, handed over the same to the first informant for taking it to the police station for formal registration of case and himself went to Mayo Hospital. He was informed that the patient was not in a fit condition to make a statement. On the following day, he went to the spot and secured blood stained earth vide memo, Exh.PJ. On 23.10.1983 he again went to the hospital but the injured was not fit to make statement. On 25.10.1983, he recorded the statement of the injured under section 161 Cr.P.C. On 26.10.1983, Nazar Hussain appellant joined the investigation while he was on bail and led to the recovery of Gun P-1 from his dera, which was secured vide memo Exh.PI. The injured died on 27.10.1983, therefore, he added section 302 PPC. On 28.10.1983, he went to Mayo hospital and prepared inquest report, Exh.PM and sent the deadbody for post-mortem examination. He got prepared site plans,Echs. PL and PL/1 from the Patwari and gave his notes in red ink thereunder. Thereafter the investigation was taken over by Raja Muhammad Arsal,SI.
Dr. Zulfiqar Siddique Qureshi Casualty Medical Officer Mayo Hospital PW- 2, medically examined Faqir Ali who was brought by one Muhammad Aslam at 12.55 p.m. On 18.10.1983 and found the following injuries:-
1. Multiple lacerated wound on front of abdomen extending from xiphisternum to umblicos to the mid-clavicular on the left side and 4 cm from mid line to the right side. Wounds were 120 to 130 No. circular, more close to each other in the centre area and on periphery about to one cm apart.
Blood was oozing out, each wound measured about 1/4 to 1/4 cm.
2. Lacerated wound 6 cm x 3-1/2 cm on left hypochon-drum, resulted from side to side contact (very close) lacerated small circular wound of injury No.1 in the centre.
Dr. Muhammad Sohail Qureshi, PW-3, on 28.10.1983, gave the operation notes Exh.PG of Faqir Ali to the investigating officer who had expired on 27.10.1983.
Dr. Muhammad Ali Chatha, PW-4, was Registrar South Surgical Ward Mayo Hospital Lahore. On 18.10.1983, the police through an application, Exh.PH, enquired about the condition of the patient for recording his statement and he replied in the negative.
Dr. Tariq Feroze Kajawahs-12, on 28.10.1983, conducted the postmortem examination on the deadbody of Faqir Ali and found irregular shaped wound 13 cm x 4 cm in the anterior abdominal wall with multiple healed pellet wound around it. In his opinion, the death had occurred due to the injury sustained on the front of the abdomen with fire-arm.
5. The prosecution in support of its case produced 14 witnesses in all. Abdul Rehman, MHC PW-1, had drawn the formal FIR on the basis of the statement Exh.PA which was brought to him by Muhammad Afzelia-6/ Zulfiqar Siddique Qureshi PW-2, had initially examined the injured who was brought by Muhammad Aslam in the hospital. Dr. Muhammad Sohail Qureshi, PW-3, handed over operation notes Exh.PG. Dr. Muhammad Ali Chatha PW-4, on 18.10.1983 gave his opinion that injured Faqir Ali was not in a fit condition to make statement. Muhammad Siddique PW-5, had witnessed the recovery of gun P-1 at the instance of Nazar Hussain. The ocular account was furnished by Muhammad Afzal and Rehmat Ali, P. Ws.6 and 7 respectively. Muhammad Ishaque, PW-9 had prepared the site plans, Exh.PL and PL/l. Muhammad Din PW-10, had deposed about the motive for the present occurrence. Muhammad Siddique, AS1, PW-12 has investigated the case. Dr. Tariq Feroze Kajawahs-12, had conducted the post-mortem examination on the deadbody of Faqir Ali on 28.10.1983. Abdul Rehman, AS1, PW-14, had identified the hand writing of Raja Arsal, who had partly investigated the case.
At the conclusion of the prosecution evidence the appellant was examined under section 342 Cr.P.C, wherein he refuted the entire prosecution allegations and stated that the case was got registered against him due to enmity.
6. It was contended by learned counsel for the appellant that the prosecution has failed to prove the motive as alleged by it. Contended that the medical evidence clearly contradicts the ocular account and, in such circumstances, the same should not have been relied upon. Argued that the prosecution story as given by the witnesses was most improbable because the motive if any was directed against the first informant and had he been present at the spot he would have been the first target. Submitted that the recovery of gun at the instance of the appellant cannot be used as corroboration because it was licensed gun of appellant's father and was never sent to Fire Arms Expert for opinion whether the same was in working condition or not. Contentions were opposed by learned counsel for the State as well as learned counsel for the complainant. Argued that the witnesses were natural as they belonged to the vicinity, Argued that the motive was established from a witness who was disinterested. Asserted that the reasons given by the trial Judge were erroneous and not warranted the capital punishment.
7. We have heard the learned counsel and gone through the evidence with his assistance. The prosecution in order to prove its case had mainly relied upon the ocular account corroborated by medical evidence, motive and the dying declaration. As far as the dying declaration is concerned, it has come in evidence of Muhammad Sadiq, AS1, that he went to the hospital on 18.10.1983 and on inquiry he was informed that the injured was not in a fit state to make a statement. He again made an application on 23.10.1983, still the injured was not in a fit state. On 23.10.1983, the doctor opined that the patient was fit to make a statement, thereafter the statement Exh.PO, was recorded by the said AS1 on 25.10.1983. We have noticed that the said statement was not recorded in the presence of the doctor nor there was any certificate by the I.O. Or by the doctor that the injured remained in senses throughout. It is in evidence that from 18.10.1983 to 23.10.1983 the patient was not in a fit state to make statement and he died on 27.10.1983. In such circumstances, unless there was anything on record to indicate that the statement was made by the injured and he remained in senses, no reliance on it can be placed. Therefore, we rule out of consideration the dying declaration, Exh.PO.
8. Doctor Zulfiqar Siddiqui Qureshi, PW-2, who initially examined Faqir Ali injured and found two lacerated wounds in front of abdomen which were 120 to 130 in number. This clearly indicates that the shot was fired from a distance when the pellets had not started spreading, which would be possible within six feet. According to the site plan, Exh.PL, the appellant was alleged to have fired from a distance of 5 karams. In these circumstances, we hold that the medical evidence does not furnish corroboration.
9. The motive for the present occurrence was that the appellant wanted to get passage from the land of Muhammad Afzal to his land and two days before the occurrence the appellant along with his co-accused and Shah Muhammad came armed with kassi to make the passage. They were stopped from making the path by Muhammad Afzal PW and Faqir Ali deceased whereupon they left while extending threats. We have seen that the land from where the appellant wanted a passage belonged to Muhammad Afzal PW and not the deceased. Muhammad Din PW-10, a witness of the motive belonged to the bradari of Muhammad Afzal PW and he has made material improvements by stating that two days earlier the appellant with his co-accused came armed with kassi and Shah Muhammad armed with sota but this fact was mentioned by the witnesses in the statement under section 161 CrJP. C. Nor finds corroboration from the statement of Muhammad Afzal PW. The witness has made material improvements by showing that the appellant's side was armed in order to strengthen the motive. The witness was confronted with his earlier statement about the improvements but he could not give any answer. Even otherwise also it is in evidence that the land belonged to Muhammad Afzal PW and if at all there was any motive it was directed against Muhammad Afzal and not Faqir Ali deceased.
10. The ocular account was furnished by Muhammad Afzal and Rehmat Ali, P. Ws.6 and 7 respectively, Muhammad Afzal PW corroborated the version given by him in the FIR, by stating that on the day incident he along with Abdul Ghafoor Rehmat Ali and Faqir Ali deceased was going towards the tubewell. Faqir Ali deceased was 50/60 yards ahead of them. When Faqir Ali deceased reached near the tubewell owned by them the appellant armed with gun Muhammad Aslam empty handed emerged from a nearby paddy crop. Nazar Hussain appellant fired with his gun which hit in the abdomen of Faqir Ali. Thereafter they ran away. The witness was cross examined at length. We have noticed that in cross-examination he stated that the injured was initially taken to hospital at Rehanwala where the doctor advised them to take him to Mayo Hospital. The witness neither obtained nor produced before the I.O. Any certificate issued by the doctor of Rehanwala Hospital. He had further stated that while he was coming back from Mayo Hospital to the police station in a bus, he saw Muhammad Sadiq, ASI, standing on the road, therefore, he got down from the bus and made statement EXH.PA. The said ASI after recording the complaint, handed over the same to the witness for the formal registration of FIR. He further stated that the said AS1 was not known to him. He was never joined in any investigation previously nor had met the said AS1 earlier.
In such circumstances, we hold that the conduct of the witness was extremely unnatural to get down from a moving bus to lodge the complaint with an AS1 who was not even known to him. This part of the prosecution story further because the AS1 chooses to record the complaint and handed over the same to the informer with the direction to take it to the police station. We have failed to understand why the said PW did not go to the police station straightway for the purpose of getting the case registered.
11. The witness had further stated that he had pointed out the place to the draftsman from where the appellant had fired at the deceased. We have noticed that according to the site plan, Exh.PL, the distance from where the appellant was shown to have fired was 5 karams which comes to about 28 feet. The injuries observed by the doctor clearly indicate that the shot was fired from within a distance of eight feet because there were 120 to 130 pellet injuries within an area of 13 cm x 8 cm indicating that die pellets had not started spreading. The injuries could not possibly be caused from a distance of 28 feet. In these circumstances, we hold that the statement of this witness stands belied by the medical evidence.
12. It is prosecution's own case that the motive for the present occurrence was an altercation which took place between Muhammad Afzal PW and Faqir Ali deceased on one side with the appellant about getting right of way from the land of Muhammad Afzal PW. It was in evidence that the said land belonged to Muhammad Afzal PW and not to the deceased. In such circumstances the motive should have been against Muhammad Afzal PW who was present at the spot. Therefore had this witness been present at the spot, he would have been the first target. For what has been discussed above, we hold that the presence of this witness at the spot is doubtful and his statement was also contradicted by the medical evidence.
13. As far as Rehmat Ali PW is concerned, he has corroborated the statement of Muhammad Afzal PW. In cross-examination, he stated that he had seen the passage made by the appellant side from the land of the complainant. This part of the statement is in conflict with the ocular account because the prosecution story is that the appellant side was stopped from making the passage before they could start. He admitted that he had met the deceased by chance. This part of the statement contradicts the statement of Muhammad Afzal PW who said that they went together.
Even otherwise also this witness stands belied by the medical evidence as he asserted that the appellant had fired from a distance of 28 feet whereas the injuries indicate that the shot was fired from within 8 feet. In such circumstances, we hold that it would not be safe to rely upon the statement of this witness without strong corroboration, which is not forthcoming in the instant case.
14. For what has been discussed above, we hold that the prosecution has not been able to prove its case beyond doubt. Therefore, giving the benefit of doubt, we accept the appeal and set aside the conviction. The appellant shall be released forthwith if not required in any other case. For the same reasons the revision petition stands dismissed.