ORDERCH. UAZ AHMAD, J.- The learned Additional Sessions Judge, Rawalpindi vide judgment dated 4-5-1994 has convicted and sentenced the appellants for the murder of Muhammad Nawaz and launched murderous assault on Mst. Razia Sultana P.W. 4 as follows:(4) Muhammad Riaz s/o Banara Khan, aged 50 years, u/ss 302/34 P.P.C.:lt is pertinent to mention here that both the sentences shall run concurrently and the convicts were also granted benefit of Section-382-B Cr.P.C.2. The convicts have filed Criminal Appeal No. 65 1994 against their conviction and sentence while the complainant has also filed Criminal Revision No. 72/1994 for enhancement of sentence and compensation. This judgment shall dispose of both the appeal and revision.3. The occurrence took place on 21-10-1990 at 8 a.m. In the house of Muhammad Maroof situated in village Dhoke Khena Dakhli Maira Tehsil Khuta. District Rawalpindi at a distance of 10 miles from Police Station Khuta. Muhammad Taj/PW.3. Brother of the deceased reported to Muhammad Razzaq, S.I./PW. 10.
Who recorded the statement of P.W.
3. Exh. PC on the same day at 10.55 a.m. At Hospital Road opposite Police Station Khuta and sent the report to the police station for formal registrationof the F.I.R, which was recorded by Muhammad Zamir. A.S.I./PW.8 Ex.PC/1. In the F.I.R, the occurrence to have been taken place allegedly as follows:Prosecution story' according to the statement Ex.PC made to the Investigating Officer by Muhammad^Taj. The complainant (PW. 3) is that on 21-10- 1990 his brother Muhammad Nawaz (deceased) alongwith his brother's were (Bhabhi) Mst. Razia S thigh.(ICDAIacerated fire-arm wound about 3x5 inches on left thigh about two inches above the knee joint.OPINION.In his opinion the cause of death is injuries No. 3&4. By these injuries there were multiple perforations in the jejunum and ileum and sighmoid colon with perforations causing perit on it is and cardiorespiratory arrest and death. Time between death and post-mortem is 3 to 4 hours. Injuries No. 3 and 4 are fire arms injuries.Dr. Ehtasham-ul-Qamar PW. 11 also medically examined Mst. Razia Sultana aged 30 years on 21-10-1990 at 10 a.m. And found the following injuries:(1) Lacerated round wound on the middle of left hand both anteriorly and posteriorly.(2)
Lacerated round wound over left thigh laterally and 4 inches from anterior-superior eliac spine.(3) .
Lacerated round wound over left thigh anteriorly two inches fromanterior-superior eliac spine.5.
The prosecution's alleged motive of occurrence behind the incident is that on tire same morning the complainant and Muhammad Arif etc. Had a quarrel over the grazing of cattle in the crop but the people intervened and set them apart. The complainant was returning home from the fields and was near Dhoke Kehna and was attracted to the place of occurrence by the noise and witnessed the occurrence. That the accused persons has launched a murderous assault on his brother Muhammad Nawaz and brother's were (Bhabi-Bharjai) for the said grievance.6. The blood- stained earth was taken into possession from the spot Exh. PD which was attested by Ghazanfar Khan/PW. 5, Muhammad Razzaq.S.I./PW.lO and Muhammad Raza was given up. It is pertinent to mention here that the report of the Chemical Examiner and Serologist were found positive. All the four appellants/convicts were arrested by Raja Muhammad Banaris. Inspector PW.
15. Gun P.l was taken into possession on the pointation of Muhammad Sharif/convict from his residential house on14- 11-1990 which was attested by Muhammad lftikhar/PW.1, Raja Muhammad Banaris, Inspector/PW. 15 and Muhammad Ayub was given up as unnecessary'.7. The prosecution produced four witnesses Muhammad Taj/PW.3. Brother of the deceased. Razk Sultana/PW. 4 (Bhabhi) brother's were. Ghazanfar Khan/PW. 5 brother and lst cousin and Muhammad Riaz brotherof the deceased was given up. While the appellants under Section 342 Cr.P.C, controverted the allegation and pleaded themselves absolutely innocent in the matter and also produced two witnesses, Ghufran Ahmad/DW. 1 and Ikram Ullah Niazi DW. 2 to prove that Khalid Mahmood-convict was admitted'in the Hospital w.e.f. 1-1-1988 upto 28-6-1993.8. The senior learned counsel appearing bn behalf of appellants argued as follows:(i) The prosecution only produced four eye-witnesses who were interested and inimical witnesses and their statement need independent corroboration. There is no independent corroboration in the present case, therefore, sentence awarded to the appellants is not sustainable in the eves of law.Tii) The presence of the eye-witnesses at the spot is not natural as all the eye-witnesses belong to Dhoke Khana whereas the incident took place in Dhoke lya.Iii)) - The F.I.R, was recorded after preliminary investigation and this fact is fully established vide Memo. Exh.PC, statement of PW.
3. Which was recorded on Hospital Road opposite to the Police Station Kehuta.Civ) Medical evidence qua the eye-witnesses contradicts each other, therefore, sentence awarded to the appellants is not sustainable in the eyes of law.(v) Believing the story of prosecution in totally for sake of arguments them incident took place on account of grave andsudden provocation.I(vi) The motive as alleged by the prosecution was- not proved on the record.(vii) Khalid Mahmood convict/appellant had taken the plea of alibi that on the day and at the time of occurrence, he was admitted in Civil Hospital. Taxila. And it was duly proved by the findings of Sub-Inspector Muhammad Razzaq PW-10 and Raja Muhammad Banaras, Inspector PW- 15 who declared him as'innocent. As no injury sustained by the deceased during the occurrence had been attributed to Khalid Mahmood appellant.(viii) Dr. Sajid Hassan Raja PW-7 admitted in his cross-examination that the injuries on the person of the deceased was possible by a single 12-bore shot containing several pellets.(ix) . The place of Muhammad Akhtar appellant was not shown in thesite-plan which created a doubt on the story of the prosecution.Tx) The motive allegedly against Muhammad Taj PW who insulted the were of Muhammad Sharif convict/apptilam and admittedly there was no enmity existed between the deceased Muhammad Nawaz and the convicts/appellams. Therefore, they could have inflicted injuries or murdered Muhammad Taj. This fact alone is sufficient to create a doubt in the story of the prosecution.(xi) The convicts/appellants were granted bail by the learned Sessions Judge, but the learned trial Court considered their absconcion as a corroborative piece of evidence.Which could not be considered as absconcion as there was no proceedings initiated against them under Sections 87 and 88 Cr.P.C.(xii) The deceased as well as Mst. Razia Sultana PW-4 were examined first in the Hospital and after obtaining the medicolegal repons, Muhammad Taj PW-3 gate his statement to Muhammad Razzaq, S.I. PW-10, therefore, the medical evidence could not provide corroboration in these circumstances.(xiii) That the dying declaration of the deceased was not recorded in accordance with law laid down by the superior Couns and it was not properly proved on the record and the photostat copy was provided to the convicts/appellants at the time of recording the evidence of Muhammad Razzaq. S.I. PW-10, therefore, no reliance can be placed on dying declaration.(xiv) The dying declaration was recorded without obtaining a .. Certificate from the Doctor, as to whether the deceased was fit tomake a statement or not and even otherwise the dying declaration was recorded in presence of other interested witnesses.(xv) The recovery of guns from the convicts appellants have no relevancy as the empty cartridges were not recovered from the spot. The convicts/appellants set up a defence version which Was676 Cr.C. Key Law Reports 1997/s,plausible keeping in view' all the circumstances in juxtapositioni. e. The prosequiion version and the defence version then it is crystal clear that the defence version is valid and based on common-sense.9. Kh.
Muhammad Fayyaz Ahmad, learned counsel for the complainant supported the judgment of the learned trial Court on each and every point and argued as follows:ti) The presence of eye- witnesses at the spot is natural and their statements are consistent and corroborated with each other..(ii) The F.I.R, was promptly lodged with specific roles of the convicts/appellants.(iii) The defence version is not believable as Mst. Razia Sultana PW-4 and the deceased have no enmity against the appellants.Civ) The presence of Mst. Razia Sultana.PW-4 and the deceased being injured in the occurrence provided sufficient cause regarding their presence at the spot.(v) The dying declaration was recorded in accordance with law which is corroborated on each and every' material point w'ith the first information report and the statement of Mst. Razia Sultana PW- '4. .