' Through this criminal appeal, the appellants have challenged the judgment, dated 6-7-1993 passed by Mr. Riazul Hassan Alvi, the learned Additional Sessions Judge, Bahawalpur, in case F.1.R.
No,209, dated 29-5-1991 under section 302/34, P.P.C., Police Station City Ahmadpur East, whereby he convicted the appellants under section 302(b)/34, P.P.C. And sentenced them to life imprisonment.
They were also extended the benefit of the provisions of section 382-B, Cr.P.C.
2. The prosecution story as given in the F.I.R. (Exh.P.D.) lodged by Khalil Ahmad complainant (P.W.8) is that his sister Mst, Habiban Mai was married to Ijaz Ahmad son of Noor Muhammad accused and Mst. Shamim a daughter of the said Noor Muhammad was married to Ahmad Bakhsh, a paternal- uncle of the complainant. Sister of the complainant (Mst. Habiban) was turned out by her in-laws and she came to the house of her parents after same time. Ijaz Ahmad, Noor Muhammad, Muhammad Irshad accused, Ahmad Bakhsh and Ghulam Rasool gave beating to the complainant in consequence of which a case under section 307, P.P.C. Was registered. On 18-4-1991, Noor Muhammad, Irshad and others came armed to the house of the complainant and attempted to abduct Mst. Habiban which was resisted and the accused left the place. Yet another case was registered qua this incident. The appellants Noor Muhammad and Muhammad Irshad and their co-accused who stand, acquitted as a result of compromise to his extent came to the complainant's house and asked him not to pursue the criminal cases to which he refused. They left the place giving threats.
3. It is further alleged that on the fateful day and time, the complainant and his deceased brother Abdul Hafiz were going to Ahmadpur East on a bicycle. On the way Muhammad Irshad, Noor Muhammad appellants and their co-accused Muhammad Amin armed with pistols ambushed the complainant and his brother. Noor Muhammad fired which landed, on the left hand of Abdul Hafiz deceased, Muhammad Amin accused fired which hit the deceased on the right hand and the fire of Muhammad Irshad appellant landed on the belly of the deceased and he fell down. The accused thereafter decamped from the spot. This incident was witnessed besides Khalil Ahmad complainant, by Nazir Ahmad (P.W.9), Ghulam Farid (P.W.10) and Ghulam Muhammad (given up).
Abdul Hafiz (deceased) succumbed to the injuries and died at the spot.
4. After recording F.I.R. (Exh.P.D.) Muhammad Siddiq, Inspector (P.W.14) visited the spot, inspected the same, prepared injury statement (Exh.P.H.) and Inquest Report (Exh.P.I.) of Abdul Hafiz deceased. His dead body was, thereafter sent to hospital for post-mortem examination. The bloodstained earth was secured from the spot and made into a sealed parcel vide memo. Exh.P.F.
Bicycle (P.7) belonging to the deceased was taken into possession vide memo. Exh.P.G. He prepared site, plan which is Exh.P.J. The last worn clothes of the deceased, Qameez (P.2), Shalwar (P.3), Buqyan (P.4) and Phial (P.5) were also taken into possession vide memo. Exh.P.B.
5. Muhammad Amin accused was arrested on 7-7-1991. He led to the recovery of Carbine (P.8) from his residential house which was sealed into a parcel vide memo. Exh.P.K. The sketch of the carbine is Exh.P.K./1. He also prepared site plan of the place of recovery of carbine which is Exh.P.K./2. On 15-7-1991 he arrested Noor Muhammad appellant who led to the recovery of carbine (P.6) from his residential Kotha. This was witnessed by Haji Abdul Lateef (P.W.12). On 29-7-1991, it was sealed into a parcel vide memo. Exh.P.E.
Sketch of the carbine is Exh.P.E./1 and site plan of the place of recovery is Exh.P.E./2. Site plan of the place of occurrence was prepared by Mahmood Akbar, Patwari which is Exh.P.C. And Exh.P.C./1.
Muhammad Irshad accused was arrested by Nawazish Ali, A.S.I. (P.W.1) on 14-12-1992. On the same day, he led to the recovery of carbine (P.1) from the kitchen of his house which was taken into possession vide memo. Exh.P.A. This was witnessed by Saeed Ahmad (P.W.11).
6. During trial, the prosecution examined fifteen witnesses-including the Investigating Officer and the doctor. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity.
7. In support of this appeal, the learned counsel for the appellants has raised the following pleas:--
(i) That all the prosecution witnesses are related. No independent witness had supported the prosecution version although, it was a broad daylight occurrence;
(ii) That even the recovery witnesses are related and they are the residents of the different villages from where the recovery took place;
(iii) That there are material discrepancies in the prosecution evidence which make the case doubtful. For instance P.W.8 says that the fire was shot from six feet whereas the Patwari while appearing as P.W.6 stated that the assailants were at a distance of twelve Karams i,e, 66 feet;
(iv) That in the F.I.R. And statements under section 161, Cr.P.C., prosecution case is that they were fired at with pistol whereas- the weapon of crime recovered is a carbine;
(v) That no crime empty was recovered from the spot to connect the same with the weapon of offence. Hence the recovery of carbine is of no help to the prosecution;
(vi) That P.W.8 says that the dead body of Abdul Hafiz deceased was sent to hospital for post- mortem examination at 9-30 a.m. Whereas the said examination took place at 2-15 p.m.; (vii). That no Lalkara is alleged in the F.I.R. But in their statements before the learned trial Court, the prosecution witnesses have introduced the element of Lalkara which make their testimony unworthy of any credit;
(viii) That the enmity of P.W.9 Nazir with the assailants is admitted. If that be so, then he too would have been the victim of attack. The fact that he did not receive a single injury during the occurrence, proves that he was not present at the spot.
8. The learned State counsel has defended the impugned judgment and submits that the F.I.R. In this case was lodged with promptitude. Each appellant was assigned a specific role. The version of the complainant stands corroborated by eye-witnesses P.W.9 and P.W.10 and their version stands duly corroborated by the recovery of weapons of offence as also the motive of the assault.
According to him, the appellants have already been dealt with leniently and they deserve no further mercy.
9. I have heard the learned counsel for the parties and have also perused the record.
10. Motive in the, present case stands proved not only by the statements of P.W.8 Khalil Ahmad (complainant), P.W.9 Nazir Ahmad and P.W.10 Ghulam Farid but also by the admission made by the appellants in their statements under section 342, Cr.P.C. Wherein they admitted that there was criminal litigation pending between them and the complainant party.
11. Coming to the ocular account it is to be noted that Khalil Ahmad complainant though a brother of the deceased is a natural witness and his statement inspires confidence. Despite a lengthy cross-examination to which he was subjected, the defence could not shake his credibility. Merely because he is a brother of Abdul Hafiz deceased would not discredit him as he is also a close relative of Noor Muhammad appellant. Similar is the case of P.W.9 Nazir Ahmad and Ghulam Farid P.W.10. Both of them are cousins of P.W.8. Their version qua the occurrence is consistent on all material particulars with the statement of Khalil Ahmad complainant (P.W.8).
12. Yet another fact which lends support to the ocular account of the prosecution case is the fact that the occurrence took place at 7-00 a.m. And the F.I.R. Was lodged at 8-30 a.m. On the same day. In a broad daylight occurrence 1 and the F.I.R. Having been lodged with promptitude their is no question of mistaken identity co false implication.
13. The medical evidence in this case was furnished by P.W.15 Iqbal Hussain, Dispenser who proved the post-mortem report Exh.P.L. As the doctor who conducted the said examination had gone abroad. According to the postmortem report, there were following injuries on the person of Abdul Hafeez deceased:--
(i) A lacerated wound of black colour about 5 c.m. In diameter on left side of the front abdomen.
The small intestine is coming out of the abdominal wound. The corresponding fire-arms holes are present on the shirt. A number of pellets found. Some of these taken out.
(ii) A lacerated fire-arms wound 5 c.m. x 3 c.m. x bone deep on the ulnar side of front of the hand.
Some pellets of arm removed.
(iii) A fire-arm wound of arm 1 c.m. x bone deep in front of distal end of thumb of right hand. The pellet removed.
14. The medical evidence in so far as the role attributed to Muhammad Irshad appellant co- accused is concerned, is corroborative of the ocular account. There is abdominal injury on the person of Abdul Hafeez deceased and there is an injury on the right hand of the deceased. From both these injuries pellets were removed. However, if the injury attributed to appellant Noor Muhammad is seen in the light of, the other attending circumstances the same becomes rather doubtful, Muhammad Irshad appellant fired with a carbine which omits several pellets which hit the abdoMen on the left side. The pellet injury attributed to Noor Muhammad appellant is also on the ulnar side of left hand of the deceased. As the empty recovered from the spot did not match with the carbine recovered from Noor Muhammad appellant, the possibility cannot be ruled out that injuries received by Abdul Hafeez deceased on the ulnar side of left hand and on the left side of abdoinen were caused as a result of one fire.
15. There are material discrepancies in the prosecution evidence so far as the role attributed to Noor Muhammad appellant is concerned. For instance P.W.10 Ghulam Farid says that Noor Muhammad fired at Abdul Hafeez deceased from a distance of 40/50 feet whereas according to P.W.9 Nazir Ahmad, Noor Muhammad appellant was at a distance of 2/3 paces when he fired.
16. In the background of enmity which existed between the parties, the possibility of Noor Muhammad appellant's false implication, who is an old man, cannot be ruled out.
17. The prosecution evidence qua the role attributed to Muhammad Irshad appellant is consistent and it is corroborated by the medical evidence. The recovery of P.1 was purportedly witnessed by P.W.11. But a bare reading of his statement and the statement of the Investigating Officer would show that the said recovery is doubtful. The alleged occurrence took place on 29-7-1991 whereas Muhammad Irshad appellant was agented on 24-12-1991. It is repellent to common sense that an accused would keep his weapon of offence for a period of more than two months and that too unlicensed. The recovery is even otherwise of no consequence as the empties recovered from the place of occurrence were sent to the Forensic Science Laboratory and the report was to the effect that the same were not fired from the pistol which was recovered from him. The evidence of recovery is basically a corroborative piece of evidence. In the presence of overwhelming ocular account establishing the I ,,, involvement of the appellant Irshad a weakness in the evidence of recovery would not be fatal. The case against Muhammad Irshad appellant, therefore, stands established beyond a shadow of doubt and the conviction and sentence recorded against him do not warrant interference.
18. For what has been discussed above Noor Muhammad appellant is given the benefit of doubt and is hereby acquitted. The appeal to the extent of Muhammad Irshad appellant has no merit which is dismissed.