RIAZ AHMAD, J.~ Appellant Feroze Din son of Rehmat Ali, his brother Muhammad Azam and Riyasat Ali son of Muhammad Abdullah alongwith 3 others namely Abdullah, Muhammad Tufail and Rehmat Ali were tried on a charge under section 302/148/149 PPC for having committed the murder of Inayat Ullah deceased.
2. Vide judgement dated 27.2.1989, the learned Addl. Sessions Judge found only the appellants guilty on the aforesaid charge while the remaining three accused were acquitted. The appellants were sentenced to undergo life imprisonment each and to pay a fine of Rs.5,000/- each or in default to undergo R.I. For a term of two years. Each of the appellants was also directed to pay Rs.5,000/- as compensation to the heirs of deceased. They were also extended benefit U/s. 382-B Cr.P.C.
Aggrieved by their conviction, the appellants have preferred this appeal while the complainant filed Cr.Rev.337 of 1989 praying for awarding capital sentence to the appellants. The complainant has also filed Cr. Rev.336-89 against the acquittal of Rehmat Ali, Muhammad Abdullah and Tufail co-accused. The appeal and both the revision petitions shall be disposed of through this judgment.
The occurrence resulting into the death of Inayat Ullah took place on 29.5.1987 at 10 a.m. In village Kot Ahdian, Tehsil Ferozewala, District Sheikhupura. The FIR Ex.P.B. Was lodged on the same day at 11.15 a.m. By complainant Wazir Ali and the same was recorded by S.I. Abdur Rehman.
3. The prosecution case in brief as disclosed in the FIR by the complainant was that the deceased Inayat Ullah was his brother, he would occasionally lead prayer while appellant Rehmat Ali, was the permanent Imam of the mosque. On the fateful day, it was Eid day. Appellant Rehmat Ali made an announcement in village that Eid prayer would be held in an open place of the village. Deceased Inayat Ullah also declared that Eid prayer would be held at the shrine of Sahibzada Sahib, in view of these declarations, two congregations to offer Eid prayer were held and after their conclusion, the people returned to their houses. The complainant alongwith Maulvi Inayat Ullah deceased, Rafique, Muhammad Ashraf and Muhammad Younas were standing in the court-yard of the house of Muhammad Safdar son of Hakim Ali. In the adjoining house owned by Muhammad Abdullah, he along with Maulvi Rehmat Ali, both empty handed, Muhammad Tufail and Feroze Din armed with 12 bore guns, Muhammad Azam and Riasat Ali armed with carbine arrived there. On the sight of the complainant side, appellant Rehmat Ali and co-accused Muhammad Abdullah raised a Lalkara to teach a lesson to Maulvi Inayat Ullah for leading separate Eid prayer. On this Lalkara, the acquitted co-accused Muhammad Tufail fired a shot at the deceased Inayat Ullah hitting right side of his chest whereupon he fell down. The complainant and the eye witnesses took refuge behind the wall and then Muhammad Azam, the acquitted co-accused, armed with a carbine, Feroze Din appellant armed with his gun and Riasat Ali armed with a carbine fired one shot each upon the deceased who had already fallen on the ground. These shots were fired at the right arm pit & ribs on the left side respectively. The complainant side raised hue and cry, upon which many persons of the village gathered at the spot. Thereafter, the appellants and the acquitted co-accused fled away from the scene of occurrence while firing in the air. Deceased Inayat Ullah succumbed to the injuries at the spot. It was further stated in the FIR that when the appellants and the acquitted co- accused were firing while fleeing from the spot, appellant Riyasat Ali was injured by the firing of one of his associates.
The investigating officer after recording the FIR reached the spot and took into possession two crime empties P.4/1-2 vide memo Ex.P.E. These empties were taken into possession from the courtyard of the house of Abdullah, the acquitted co-accused. On 20.6.1987, acquitted co-accused Muhammad Tufail, Rehmat Ali and Muhammad Abdullah and the appellants Feroze Din & Muhammad Azam were arrested. On 27.6.1987, the acquitted co-accused Muhammad Tufail while in custody led the police party to his house and got recovered gun P.5, it was taken into possession vide memo Ex.P.K. Similary appellant Muhammad Azam while in custody led the police party and got recovered carbine P.6 from his residential house which was taken into possession vide memo Ex. P.l. Appellant Feroze Din on the same day, led the police and got recovered gun P.7 from his house and the same was taken into possession vide recovery memo Ex.P.M. Appellant Riasat Ali was arrested on 30th of July, 1987 and on the same day, while in custody, he led the police and got recovered carbine P.3 and the same was taken into vide recovery memo Ex.P.C. Attested by PW 3 Pervez and PW 4 Abdul Ghani besides the investigating officer. Ex.P.K., Ex. P.L. & Ex.P.M. Were attested by Ashiq Hussain and Faquir Muhammad (not produced).
4. On 30.5.1987 at 7-45 Dr, Khalid Yazdani, Senior Medical Officer, DHQ Hospital, Sheikhupura, conducted the postmortem examination on the dead body of deceased Inayat Ullah and found the following four injuires on it:- 1) An entrance wound of fire-arm 1 cm x. 1 cm x chest cavity on the back of right chest in middle entered into the cavity and puncturing the right lung and making an exit wound 1 cm x 1 cm op the front of right chest inside two medium lines just near the right nipple.
2) An entrance wound of fire-arm 1 cm x 1 cm x chest cavity from the back of left chest just with inner margins of the left scapula entering into cavity after fracturing the first rib from back and making exit wound 1 cm x 1.5 cm on the left side of neck.
3) An entrance wound of fire-arm 1.5 cm x 1 cm x deep to the bone, bone (humerus) fractured and pellet lodged in the right shoulder joint. Wound was from the inside and black of right upper arm just below the shoulder joint.
4) Laceration 1.5 x 1 cm on the right upper arm and tatooing was present.
Tatooing was present on all wounds of entry. In the opinion of the doctor, the injuries were caused by fire-arm and death had occurred due to severe shock and failure of cardio respiratory system caused by Injuries Nos. 1 & 3 which were sufficient, in the ordinary, course of nature to cause death.
5. At the trial, the prosecution placed reliance upon the ocular testimony furnished by Wazir Ali, PW 2 (complainant) who lodged the FIR, Muhammad Yunus, PW 5 and Muhammad Rafique, PW 6. In addition to the ocular testimony, the prosecution also placed reliance upon the evidence' as to the recovery of weapons at the instance of the appellants and the recovery of the crime empties from the spot. However, according to the report of the Forensic Science Laboratory, none of the empties matched with any weapon.
With the assistance of the learned counsel for the appellants, the State and that of the complainant. I have carefully gone through the entire evidence on the record.
The learned counsel for the appellants has vehemently argued that the acquittal of co-accused Rehmat Ali and Abdullah makes the entire prosecution case very doubtful their acquittal would prove that the evidence as to the Lalkara attributed to them has to be ignored. Furthermore, it was argued that if at all, motive is believed, it would be against Rehmat Ali and not against deceased Maulvi Inayat Ullah and Rehmat Ali was unarmed and no overt act has been attributed to him. It was also contended that the FIR in this case was recorded after preliminary investigation because the rough notes taken by the investigating officer did not disclose the name of the appellants and, therefore, the FIR was recorded after spot inspection. It was next contended that the eye witnesses in this case are chance witnesses, they reside at a distance of 1-1/2 mile away from the scene of occurrence and on record, no satisfactory explanation exists to believe their presence. Further more, it was Eid day and the eye witnesses were supposed to be with their families to celebrate the occasion and, therefore, the ocular account in this case was unworthy of credence. It was also contended that according to the PWs, after Eid prayer, both sides returned peacefully and there was no bitterness. It was further contended that the ocular evidence in this case is conflict with the medical evidence and 0n this score also, the ocular evidence cannot be believed.
6. Precisely it was argued that all the injuries had tatooing which should prove that the shot was fired from a very close range but the site plan indicates that there was distance between the assailants and the victim and it clearly establishes that fires were shot from a very long distance and this could not have caused tatooing.
According to the prosecution case, the shot fired by Muhammad Tufail had hit the chest of the deceased but no injury on the chest was found and as far as appellant Azam is concerned, his shot allegedly hit the right flank but all the injuries are on the back of the deceased.
It was also argued that all the injuries are located in a very small dimension and therefore, it is the result of one shot.
7. I have carefully considered all these aspects of the case. The conflict between the medical and the ocular testimony obviously creates a doubt. According to the site plan, the fires were shot from a distance of 35 feet and prinia facie, the fire shots from such a distance could not cause tatooing.
Furthermore, after the receipt of the first shot, the deceased had fallen down and since the appellants were allegedly firing from the house of Safdar, over the wall, and since deceased had also fallen down behind the wall, therefore, it is unintelligible as to how the injuries could be received in view of the posture of the appellants as the prosecution wants us to believe. Moreover, the receipt of the injuries to Riasat Ali appellant has also not been satisfactorily explained and in fact it creates mystery which the prosecution has failed to solve.
As far as the ocular evidence is concerned, obviously, the eye witnesses have not explained their presence because in ordinary course, after offering Eid prayer, everyone rushes to his house and would postpone his visits to other places. I am, therefore, not satisfied that the eye witnesses had seen the occurrence. Similarly, the assertion of the complainant also indicates that the shot fired by acquitted co- accused Muhammad Tufail had hit the chest of the deceased is also belied by post-mortem report and that is why, he was acquitted. The recovery evidence is of no avail to the prosecution, inasmush as, the empties did not match with any gun and two witnesses to the recovery memos. Ex.P.K., P.L. & P.M. Were declared hostile.
The accumulative picture emerging from the evidence on the record is that the prosecution case is highly doubtful and hence the appellants are entitled to the benefit of doubt which is extended to them. This appeal is allowed. The conviction and sentences of the appellants are set aside. They shall be acquitted and released forthwith if not required in any other case.
For what has been stated above, I find no substance in both the revision petitions bearing Nos.336 & 337 of 1989, filed by the complainant, and the same are hereby dismissed.