' Muhammad Yousaf alias Baggi son of Jehangir has been convicted and sentenced under section 302-B, P.P.C. To life imprisonment and under section 337-F(i), P.P.C. To undergo one year's R.I. By the learned Additional Sessions Judge, Okara vide his judgment, dated 24-6-1993 in complaint case titled "Muhammad Sarwar v. Muhammad Ameer etc." under section 302, P.P.C.; hence this appeal.
2. Brief facts of the case are that Muhammad Sarwar, complainant feeling dissatisfied with the result of investigation of case F.I.R. No,283, dated 5-8-1991, filed complaint, dated 27-10-1991 contending that on 4-8-1991 he alongwith his brothers Khan Muhammad, Muhammad Ramzan and Waryam alias Jagga, Muhammad Yousaf son of Muhammad Shahbaz were present at home when at about 7 p.m. Muhammad Amir and Muhammad Jahangir sons of Mutali came to their Dhari and took away his brothers Waryam alias Jagga and Khan Muhammad to their Dera on the plea of resolving a dispute of irrigating water. When Khan Muhammad and Waryam did not turn up till late hours, the complainant, his brother Muhammad Ramzan and his cousin Muhammad Yousaf went to the Dhari of Muhammad Ameer etc. They reached there at 8 p.m. And saw Muhammad Amir and Jehangir sons of Mutalli, Muhammad Yousaf alias Baggi son of Jehangir and their brother Waryam alias Jagga and Khan Muhammad sitting there. The complainant the moment asked his brother to go to house, Muhammad Ameer and Jehangir accused raised Lalkara that the enemies who had come to their houses be not permitted to go alive, whereupon Muhammad Yousaf alias Baggi, armed with rifle, fired at Waryam alias Jagga which hit on the knee of his left leg on inward side and when he fell on the ground, he again made second fire which hit Khan Muhammad on knee of his left leg. The complainant party made hue and cry which attracted the villagers to the spot but the accused had decamped from spot. Muhammad Yousaf and Muhammad Ramzan removed their injured brothers to their house who could not be shifted to hospital due to non- availability of means of transport; meanwhile Waryam alias Jagga succumbed to his injuries.
3. The motive for the occurrence as stated was that Waryam alias Jagga deceased was suspected for carrying on with Mst. Sakeena daughter of Jehangir and for that reason, Muhammad Amir, Muhammad Jhangir and Muhammad Yousaf alias Bagi accused in prosecution of their common intention committed Qatl-e-Amd of Waryam alias Jagga and injured Khan Muhammad with intention of his murder.
4. The accused were charged under section 302/324/34, P.P.C. To which they pleaded not guilty and claimed to be tried according to law.
5. The complainant examined as many as four witnesses to prove its version while Abdul Khaliq, Muhammad Akram, Muhammad Nawaz, A.S.I., Ghulam Muhammad S.I. And Muhammad Siddique were examined as C.W.1 to C.W.S.
6. P.W.1 Doctor Abid Mehmood deposed that on 5-8-1991 at 8-00 a.m. He conducted the post- mortem examination of the dead body of Waryam son of Muhammad Nawaz aged 28 years caste Dhakoo; it was a dead body of young man; post-mortem staining and rigor mortis were present.
Dhoti and shirt were stained with clottedd blood. Dhotti also contained multiple holes. The doctor found two injuries on the person of deceased. The main injury was caused by fire-arm and it was through and through leading to the complete laceration blood vessels and injury was dangerous for life.
7. In his opinion the cause of death of the deceased was severe loss of blood as a result of fire-arm injury which caused laceration of big blood vessels of the area (Poplitial artery). Injury was ante- mortem and incompatible with life in the ordinary course of nature. In his opinion, the victim was fired from the back and left side. Probable time between injuries and death was two to three hours approximately, duration between death and post-mortem within 8 houRs, On the same day, at about 8-55 a.m. He medically examined Khan Muhammad P.W. And found two injuries on his person. The main injury was caused by fire-arm and duration was within 10 houRs,
8. C.W.2 Muhammad Akram, C.W.3 Muhammad Nawaz, C.W.5 Muhammad Siddique and C.W.6 Farooq Ahmad were the formal witnesses who supported the version of C.W.4 Ghulam Ahmad Investigating Officer. C.W.4 Ghulam Ahmad S.I., Investigating Officer deposed that on 5-8-1991, he recorded statement Exh.P.E. Of Muhammad Sarwar complainant, prepared injury statement Exh.C.W.4/A and inquest report Exh.C.W.4/B. He visited the place of occurrence and took blood- stained earth from it through memo. Exh.P.C. And prepared rough site plan Exh.C.W.4/C of the place of occurrence. He recorded the statements of P.Ws. Under section 161, Cr.P.C. And on the same day, Muhammad Siddique P.W. Produced last worn clothes of the deceased through memo.
Exh.C.W.4/D. He arrested Muhammad Yousaf appellant on 10-8-1991, who on the same day produced rifle P.1 which was taken into possession through memo. Exh.P.D. He also got prepared site plans Exh.C.W.4/E and Exhs.C.W.4/E/1 and C.W.4/E/2.
9. C.W.1 Abdul Khalique deposed that he partly investigated the case already conducted by his predecessor C.W.4 Ghulam Ahmad, submitted report under section 173, Cr.P.C. Against Muhammad Yousaf accused/appellant only as he found Muhammad Amir and Muhammad Jhangir co- accused (since acquitted) as innocent.
10. P.W.2 Muhammad Yousaf, P.W.3 Muhammad Sarwar, the complainant and P.W.4 Khan Muhammad P.W. Injured being eye-witnesses present at the spot fully supported the version of the complainant.
11. The statements of the accused were recorded under section 342, Cr.P.C. In which they claimed to be innocent and involved falsely due to suspicion, party faction and due to enmity. However, refused to enter in the witness-box under section 340(2), Cr.P.C. And did not produce any defence witnesses in their favour.
12. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance.
13. It is admitted fact that P.W.3 Muhammad Sarwar and P.W.4 Khan Muhammad injured are real brothers of the deceased and the deceased was paternal-cousin of P.W.2 Muhammad Yousaf son of Muhammad Shahbaz. It is also an admitted fact that the police investigation in case F.I.R.
No,283/91, dated 5-8-1991 lodged by Muhammad Sarwar P.W. Held by two Investigating ' Officers ordered the other two accused namely Muhammad Ameer and Muhammad Jhangir as innocent.
These are also admitted facts that occurrence took place during darkness of night; during night between 23/24 of Lunar month, Muhammad Jhangir and Muhammad Amir co-accused (since acquitted) are twin brothers and are aged about 80/90 years; Muhammad Jhangir wears power glasses due to his weak eyesight and Muhammad Jhangir had got a case registered against Muhammad Sarwar complainant P.W.3 in which he was under arrest at the time of recording his statement. In the present case the contention of the learned counsel for the appellant that according to F.I.R. Exh.P.C. Occurrence took place at 11 p.m. While according to the complaint Exh.P.F.
Occurrence took place at about 8-00 p.m.; as both were lodged by Sarwar complainant P.W.4; the time in complaint is afterthought only to cover the lacuna of M.L.R. Exh.PA.; according to which the deceased expired at 1-00 a.m. On 5-6-1991; the post-mortem was conducted at 8 a.m. On the same day and according to doctor probable time between death and injuries was within 2 to 3 hours and between death and poM-mortem examination was 8 hours approximately. Though the complaint was filed after about 2-1/2 months but no explanation whatsoever has been given for altering the time of occurrence by complainant P.W.3 and even nothing has been brought on record to substitute the stand taken in the complaint. The alteration in the time of occurrence throws a grave doubt. The contention of the trial Court that as the complainant was dissatisfied with the role of police; hence the statement of complainant and his witnesses are preferable over police version seems to be misconceived. The time of occurrence at 11-00 p.m. In the F.I.R. Was given by the complainant Muhammad Sarwar P.W.3 not by the police and there is nothing on record to prove that either the complainant agitated on his point or raised any objection. This vital discrepancy is of serious nature and creates doubt. In case Jhangir Khan v. The State 1972 SCMR 221 principle has been laid down that there is material discrepancy in the statements of prosecution witnesses with version made at the initial stage in F.I.R., benefit of doubt must be given to the accused.
14. The contention of the learned counsel for the appellant that as the occurrence took place during darkness of night, non-disclosing of source of light either in F.I.R. Or in the complaint to establish identity of the accused is of no help to the appellant; as it is not obligatory that the F.I.R.; being initial report, must contain all minute details as it is not a substantive piece of evidence.
15. The contention that non-recovery of empties from the place of occurrence is very material as raised by the learned counsel coupled with the doubtful recovery of rifle P.1 is of significant consequences. The observation of the learned trial Court that non-recovery of empties from the place of occurrence is immaterial is misconceived. The recovery of rifle was made in the presence of Muhammad Yousaf P.W.2; as he deposed that he again joined the police investigation in the case at Larry Adda Bhoman Shah; where the accused produced rifle P.1 to the Thanedar, which was taken into possession vide memo. Exh.P.D.1. Bhoman Shah, Lorry Adda is a busy place and offices of transport combines as well as shops are situated there. Under section 103, Cr.P.C. It is mandatory to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated; as laid down in case Muhammad Shafi and others v. The State PLD 1967 SC 167 that independent witnesses are sought for verification of recoveries and recovery of incriminating articles without joining disinterested persons becomes highly doubtful as held in case Muhammad Afzal v. The State 1983 SCMR 1. Further, the rifle P.1, recovered was neither sent to Forensic Science Laboratory nor any explanation in this regard was brought on record either by the police or the complainant; which makes the recovery of incriminating rifle P.1 as doubtful; merely recovery of an incriminating item does not prove the offence itself. The appellant/accused in his statement had deposed that neither he produced the rifle P.1 nor it belonged to him, further, strengthens the arguments advanced by the learned counsel for the appellant.
16. It is interesting to note that P.W.1 Doctor Abid Mahmood Shah conceded in cross-examination that whatever time he had written was scored off in the column of death, the figure five was over written and was unable to tell the time written in the said column as there was visible cutting of time between death and post-mortem. According to him injury No,1 on the person of deceased could not be caused if the assailant fired upon him from his front even it could not be caused if fired from his rear side. He opined, the deceased as well as Khan P.W. Received injuries from a distance of more than three feet and did not agree to the suggestion that injuries were caused to both of them were of different arms.
17. The ocular account of the prosecution is not in consistency with medical report. The cutting, over-writing and scoring off timing in the column of death does not support the complainant version rather raises reasonable doubt from the ocular evidence regarding the timing of occurrence, hence the evidence of eye-witnesses under the circumstances being in consistent with medical evidence, in the absence of evidence of independent and unimpeachable character cannot be relied upon.
18. The contention of the learned counsel for the complainant that as the complainant being dissatisfied with the role of police had filed complaint after a period of 2-1/2 months of the occurrence as the Police Officers declared Muhammad Jhangir and Muhammad Amir co-accused as innocent because of the accused party being influential, but nothing has been brought on record to prove the malice against the police by the complainant, perhaps it is an easy job to allege malice but to prove it is difficult task. The learned counsel also referred to the statement of C.W.1 Abdul Khaliq on the basis of which the learned trial Court convicted the appellant. As per statement of Abdul Khaliq C.W.1, the occurrence took place due to mishandling of rifle by the appellant. The statement of the C.W.1 seems to be either misleading or based on ignorance of use of the weapon; as a rifle after one shot needs reloading for second shot unless it is an automatic weapon; if the appellant had fired after reloading the rifle, then it was not mishandling but was an intentional murder of the deceased, because the felonious intention as defined in the section, as an ingredient of the offence; after repeated fire stood completed.
19. The motive of the occurrence as alleged in F.I.R. As well as in the complaint and as per evidence on record has not been proved rather the complainant did not led any evidence in this regard. It is, therefore, abundantly clear that there was no motive for the murder of deceased by the appellant but on the other hand there could be a motive for false charge because in view of the strained relations between the parties the accused could be charged on suspicion as the complainant was involved in a case by the accused/appellant party and the complainant was behind the bar when his statement was recorded by the police. As laid down in case Zaman v. The State PLD 1985 Lah.
566, there can be two opinions that enmity is a double-edged weapon and it cuts both ways. In the circumstances of the case, I am of the opinion that benefit of this maxim should not be given to the prosecution. The reasonable possibility of the false implication of the appellant on account of or suspicion that he might have killed the deceased cannot be ruled out".
20. The contention of the learned complainant's counsel that the accused appellant did not appear as his own witness under section 340(2), Cr.P.C. And produce his evidence is without any logic and weight. Now, it is well-settled proposition of law as laid down by Supreme Court in case Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983, that:-- "The burden of proof in a criminal case throughout the trial of a case, remains on the prosecution and this burden is not shifted on the defence. The prosecution is to prove the case against the accused beyond reasonable doubt. The fact that the accused has raised a plea which is found by the Court to be untrue, would not relieve the prosecution from the above burden, nor any adverse inference can be drawn against the accused on account of his failure to prove the plea raised by him."
21. The outcome of above discussion is that neither any motive has been attributed to the appellant to kill the deceased nor it has been proved beyond any shadow of doubt. The medical evidence is not clearly supporting the complainant version as there are vital discrepancies as the ocular evidence is not in consistency with medical evidence on record. Similarly, neither recovery of empty was made from the spot nor recovery of rifle P.1 was proved by independent witnesses and the prosecution witnesses were not independent.
22. I am of the view that there are discrepancies of serious nature and inconsistency with the evidence of prosecution. As held by their Lordships of Supreme Court in case Nasim Khan and 2 others v. The State 1984 SCMR 1092 that benefit of reasonable doubt arising from discrepancies and inconsistencies in evidence cannot be denied to accused on hypothesis that such defects occurred on account of misunderstanding of Police Officer recording the statements of the witnesses.
23. For the foregoing analysis of the evidence and reasons, I am of the view that the prosecution has not been satisfactorily able to prove its case beyond any shadow of doubt against the appellant/accused. He is, therefore, acquitted of the charges giving him benefit of doubt. He shall be released from jail forthwith if not required in any other case.