Ashiq Ali son of Muhammad Ali, Khalid Mahmood son of Ahmad Din and Liaqat Ali son of Muhammad Ali were tried for the murder of Muhammad deceased and for causing injuries to Jafar Ali P.W. (not produced). Vide his judgment dated 19-5-1994, the learned Additional Sessions Judge, Depalpur acquitted Liaquat Ali and Khalid Mahmood of the charges but convicted Ashiq Ali appellant under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs.20,000 or in default to undergo two years' R.I. With benefit of section 382-B, Cr.P.C. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
2. Challenging his conviction and sentence Ashiq Ali appellant has filed this appeal.
3. The prosecution case in brief is that on 4-4-1992 at 6-00 p.m. Allah Ditta complainant, his son Muhammad Ali deceased and Jaffar Ali were proceeding towards the house of one Naveed Alam Sukhera situate in Qila Jawind Singh and when they reached near Chah Deneywala, Ashiq Ali appellans and his companions Khalid Mahmood and Liaquat Ali suddenly emerged out armed with rifles and challenged them of teaching a lesson to them for helping Naveed Alain Sukhera. On this, Allah Ditta etc. Got down from the motor-cycle. Ashiq Ali appellant fired from his rifle at Muhammad Ali deceased hitting him on the right side of the forehead, as a result of which he fell down. Liaquat Ali fired the second shot hitting Jaffar Ali P.W. (not produced) on his right, shoulder.
He started running whereupon Khalid Mahmood accused fired at him hitting him on the back of his left thigh. Thereafter, the accused decamped with their rifles. The occurrence was witnessed by Jaffar Ali P.W. (not produced) and Muhammad Abbas P. W .5
4. Allah Ditta and Muhammad Abbas P.Ws. Carried Muhammad Ali deceased and Jaffar Ali to Civil Hospital, Depalpur but Muhammad succumbed to the injuries on way to the hospital.
5. The motive for the offence was that Ashiq Ali etc. Had litigation with Naveed Alam Sukhera. Ashiq Ali appellant etc. Suspected the complainant party of helping Naveed Alam Sukhera.
6. Allah Ditta complainant reported the matter to the police at Police Station Saddar, Depalpur on the same day at 10-30 p.m., the distance between the spot and the police station, being 15 kilometres.
7. After recording the F.I.R. Exh. PB Nasrullah Niazi, Inspector/S.H.O. P.W.7 reached the hospital and prepared the injury statement Exh. PG and the inquest report Exh.PH of Muhammad Ali deceased and sent his dead body for post-mortem examination. On the following day he collected blood- stained earth from the spot vine memo. Exh. PD. After his transfer Ch. Fazal Karim, Inspector and his successor, P.W.8 investigated the case. The accused were arrested on 18-8-1992.
8. Dr. Gulzar Hussain P.W.6 conducted post-mortem examination on the `dead body of Muhammad Ali deceased (25/26) and found the following injuries thereon:
(1) Fire-arm entry wound 1 c.m. x 1/2 c.m. Going deep on the back and left side of head 9 c.m. From left ear pinna.
(2) Fire-arm exit wound 3 c.m. x 1-1/2 c.m. On the right side of forehead 4 c.m. Above middle of right eyebrow with brain matter coming out of the wound.
According to him the deceased died of fire injuries, which were ante---mortem.
9. He also medically examined Jaffar Ali P.W. And noticed the following injuries on his person:
(1) Grazed wound 2 c. m. x 1/2 c. m. x skin deep on the outer and upper part of left arm.
(2) Lacerated wound 4 c.m. x 1-1/2 c.m. x going deep on the back and upper part of left thigh with blackening around the margins.
The injuries were caused by fire-arm.
10. Ashiq Ali appellant when examined under section 342, Cr.P.C. Denied the prosecution allegations and explained his involvement as under: "There was long-standing enmity between Naveed Alain Sukhera son of Mehboob Alam, resident of Thawar Dakhli Kacha Pacca and family of his uncle Hamad Sahu. Many criminal cases were pending between the parties. Muhammad Ali deceased and Jaffar Odd were bad character -- habitual criminals and cross-firing between the parties of Naveed Alam aforementioned and Hamad Sahu near the Dari of Siraj Bhatti. Muhammad Ali deceased was hit by a fire of his own party from the rear side Jaffar deceased was also desperado and he died later on in an encounter with the villagers after committing a dacoity in the area of District Kasur. Abbas and Allah Ditta P.Ws. Were not present at the spot. Abbas P.W. And his family are also desperate habitual criminals.
His father, brothers and he himself have been involved in many cases. He is a servant of Naveed Alam Sukhera. I halve been falsely involved due to the reason that Naveed Alam Sukhera suspected that my father and our family were supporting their opponent Jamad Sahu aforementioned. The P.Ws. Have deposed falsely due to enmity and being under the influence of Naveed Alam Sukhera. He added that during the days of occurrence he was present with his uncle Muhammad Yasin in Chak No.172/10-R, Tehsil and District Khanewal and was not present in the area of District Okara and that he had been found innocent by Mirza Izzat Baig, D. S. P., C. I. A., Okara."
He examined Mirza Izzat Baig, D.S.P. As D.W.1. According to him Ashiq Ali appellant and Liaquat were found innocent in the case and that his investigation revealed that Ashiq Ali appellant was present in Chak No.172/10-R, Tehsil and District Khanewal on the day of occurrence. He also mentioned the names of persons who were examined by him in this behalf.
11. The prosecution examined eight P.Ws. To prove its case. Allah Ditta P.W.4 is father of the deceased and is complainant of the case. He gave the same version of the occurrence as has been stated above. Muhammad Abbas P.W.5 stated that he was present near the place of occurrence when the occurrence had taken place. Jaffar Ali another injured eye-witness mentioned in the F.I.R. Could not be examined as he died prior to the commencement of the trial.
12. The learned trial Court did not consider it safe to rely upon the evidence of Muhammad Abbas P.W. 5 and based conviction solely on the evidence of Allah Ditta P.W.4, father of the deceased. The motive was also found shrouded in mystery. Khalid Mahmood and Liaquat Ali co-accused of the appellant were acquitted on the ground that they were not alleged to have caused any injury to the deceased and Jaffar P.W. Who was said to have been injured by them was not examined.
13. Challenging the conviction and sentence of the appellant, learned counsel for the appellant argues that it was highly unsafe to base conviction on the uncorroborated testimony of Allah Ditta P.W.4 Neither any crime empty was recovered from the spot nor was any weapon recovered from the appellant during investigation. Allah Ditta P.W.4 is stated to have improved upon his previous version as contained in the F.I.R. With regard to the seat of injuries suffered by the deceased. In the F.I.R. He stated that the shot fired by Ashiq Ali hit the deceased in the forehead from the front side but he took a somersault at the trial and stated that the deceased had been hit from behind. He was duly confronted with his previous version as contained in the F.I.R. He could not give any satisfactory explanation for this inconsistency. This improvement was made by him to make his statement consistent with the medical evidence because in the post=mortem examination bullet was found to have entered from the back of the head making exit from the forehead. It is next argued that if Allah Ditta P.W. Had been actually accompanying the deceased, he would have also suffered injuries when as per his version three assailants were firing rifle shots at them but he did not receive even a scratch. As regards motive, it is argued that the prosecution failed to show what was the basis of the suspicion of the accused that the complainant party was helping Naveed Alain Sukhera in the litigation between the accused and Naveed Alam Sukhera etc. The trial Court also did not consider the motive to be fully established for want of supporting evidence. Learned counsel for the appellant has also pressed into service the statement of Mirza Izzat Balg, D.S.P., D.W.
1 who stated that on the basis of the investigation conducted by him he had come to the conclusion that Ashiq Ali appellant and Liaquat were innocent.
14. Learned State Counsel submits that Allah Ditta P.W.4 being a natural witness, his sole evidence is sufficient to bring home guilt to the appellant.
15. 1 have considered this aspect and do not find any force in the contention of the learned State Counsel because Allah Ditta P.W.4 (father of the deceased) had been disbelieved qua two other accused to whom effective role in the occurrence had been assigned. Furthermore, there is absolutely no corroboration of his testimony no fire-arm was recovered from the possession of the appellant nor was any empty recovered from the spot with which it could match. The motive set up by him was also not found proved by the learned trial Court. Muhammad Abbas P. W.5 who could corroborate him was disbelieved by the trial Court. Jaffar Ali, the injured eye-witness could not be examined by the prosecution on account of his death.
16. No doubt, conviction on a murder charge can be based on the testimony of the complainant alone because the law attaches more importance to the quality than to the quantity of evidence. If the Court is satisfied that his evidence is free from all taints, its duty is to act upon such testimony but in the circumstances of the present case, corroboration of the complainant was required, for, he had been disbelieved qua two other accused, the D.S.P. Who had conducted the investigation found the appellant to be innocent and the motive set up by him was also not found proved by the learned trial Court. Furthermore, Muhammad A Abbas P.W.5 mentioned by him as an eye-witness of the occurrence in the F.I.R. Was disbelieved by the learned trial Court and nothing incriminating had been recovered at the instance of the appellant to corroborate the complainant. In these circumstances I do not consider it safe to place implicit reliance on the sole testimony of Allah Ditta complainant.
For the foregoing reasons, the prosecution has failed to prove its case against Ashiq Ali appellant beyond all reasonable doubt. Accordingly, I accept his appeal, set aside his conviction and sentence and acquit him of the charge by giving him the benefit of doubt. He shall be set at liberty forthwith, provided he is not required in any other case.