' The appellant was convicted by Sessions Judge, Khushab under section 302, P.P.C. For committing Qatl-e-Amd of Atta Muhammad deceased and was sentenced under section 302-B, P.P.C. And ordered to undergo life imprisonment to pay fine of Rs,10,000 and in default thereof was ordered to further undergo R.I. For one year. He was also ordered to pay compensation in the sum of Rs,20,000 as provided under section 544-A, Cr.P.C. Which was to be paid to the legal heirs of the deceased Atta Muhammad. In default of payment of the amount of compensation the convict was to further undergo R.I. For six months. He was given benefit of section 382-B, Cr.P.C.
2. The appellant was tried by Sessions Judge, Khushab along with Muhammad Feroze son of Ahmed Sher and Muhammad Sher son of Sher Muhammad. Both the co-accused of the appellant were acquitted on 'the ground that Muhammad Feroze was attributed Lalkara and the other co- accused was also not attributed any overt act and in view of the circumstances those two co- accused, in the opinion of the trial Court, could not be saddled to share the common intention of the appellant.
3. The alleged occurrence took place during the night between 5/6 September, 1992 and the matter was reported at Police Station Gunjial, District Khushab by Gul Jehan son of Atta Muhammad whose statement was recorded by Inspector/S.H.O. At No,127/92 of register of first information reports at 6-30 a.m. The first informant had stated that he had put up his Dera in his agricultural land in village Okhli Mohla. At midnight during the preceding night he awoke up at the barking of the dogs and saw in the moon light Muhammad Khan appellant, Muhammad Sher and Muhammad Feroze armed with 'guns standing there. Muhammad Feroze made a Lalkara that they had come to give them land; Muhammad Khan accused fired at Atta Muhammad deceased which hit him on "Pedow" and as a result thereof he died at the spot. The occurrence was according to the first informant, witnessed by him and his mother. The motive for the occurrence was given as a civil suit regarding the agricultural land which the father of the first informant had filed against the accused which was decided in favour of the first informant giving rise to the present occurrence.
4. After recording the F.I.R. The S.H.O. Went to the spot; prepared injury statement of the deceased and inquest report and sent the dead body for postmortem examination under the escort of Muhammad Ashraf complainant. He inspected the spot, took into possession blood-stained earth, prepared the same into a sealed parcel and secured vide memo. Exh.P.D. A Kauli was also taken into possession by him vide memo; Exh.P.E. He recorded the statements of the witnesses under section 161, Cr.P.C. After the post-mortem examination Muhammad Ashraf, Constable P.W.
Produced blood-stained Chaddar, the last-worn clothes of the deceased and a phial containing card board before the Investigating Officer which were taken into possession by him vide memo.
Exh.P.C. He made all efforts to arrest the accused but was not traceable. He handed over the sealed parcel to the Moharrar of the police station for safe custody and on his transfer he handed over the investigation to Ghulam Ali, Inspector. Ghulam Ali Inspector took up the investigation on 19-9-1992.
Recorded the statements of Qutab Sher and Muhammad Ashraf, Constable under section 161, Cr.P.C. On 21-9-1992 and on 22-9-1992 arrested Muhammad Feroze, Muhammad Sher and Muhammad Khan accused. On 24-9-1992 Gul Muhammad, Patwari produced site plan Exhs.P.B.
And P.B./1 before him which was in the scale of 1=10 Karams. He recorded his statement under section 161, Cr.P.C. And submitted the challan against the accused.
4. The accused were sent up to stand their trial before the Court of Session by the magistrate. The Sessions Judge framed charge under section 302/34, P.P.C. Against them on 6-12-1992. The same was read over to them. They pleaded not guilty and claimed trial.
5. At trial the prosecution produced Dr. Sh. Muhammad Ashfaq, Medical Officer P.W.1 who had conducted post-mortem examination on the dead body of Atta Muhammad son of Mali which was brought to him by Muhammad Ashraf, Constable and identified by Muhathimad Afzal and Ibrahim P.Ws. He found the following injuries on his person:-- "(1) A fire-arm lacerated wound of entry 2" x 2" through and through on the back and other side of the right hip (gluteal). Region area 4" below the right hip-joint with blackening and charring of gun powder seen at and around the wound. The underlying muscle vessels were damaged.
(2) 8 fire-arm lacerated wound of exit of injury No,1, each measuring 1/4" . x 1/4" through and through in the area of 4" x 3" on the front and inner side of right thigh, 3" below the right hip-joint."
' In the opinion of the doctor the cause of death was the shock and hemorrhage due to laceration of right femoral artery and right femoral vein. These injuries were dangerous and were ante- mortem and sufficient to cause death in the ordinary course of nature. The injuries, according to the doctor, were caused by fire-arm. The time between injury and death was 1/2 to 1 hour and between death and post-mortem was 10 to 12 hours. Exh.P.A. Was the correct carbon copy of the post-mortem report and Exh.P.A./1 was the pictorial diagram showing seat of injuries.
6. Gul Jehan, Patwari P.W.2 had prepared site plan Exh.P.B. And P.B./1 at the direction of the police and at the pointation of the witness in the scale of 1=10 Karams. Notes and drawing in black were in his hand. He admitted that he had not shown the distance between point No,1 to point No,4 and that he was not told about the number of Charpaies at point No,2 in the site plan. Muhammad Ashraf, Constable P.W.3 escorted the dead body to the mortuary and delivered the same intact at the time of post-mortem examination whereafter he was delivered Chaddar P.1 and sealed phial containing card board which he produced before the Investigating Officer who secured the same vide memo. Exh.P.C. On 16-9-1992 Qutab Sher, Moharrar, A.S.-I. Handed over one sealed parcel to him for onward transmission to the office of Chemical Examiner which he delivered intact on 19-9- 1992. Qutab Sher, Moharrar, A.S.-I. P.W.4 stated that the S.H.O. Had delivered him one sealed parcel containing blood-stained earth for safe custody which he handed over to Muhammad Ashraf P.W.3 for delivering the same at the office of Chemical Examiner, Lahore. Ibrahim P.W.5 had identified the dead body of Atta Muhammad at the mortuary at the time of post-mortem examination. Abdul Rehman P.W.6 had joined the investigation and in his presence the Investigating Officer had collected blood-stained earth from the spot, sealed the same and secured vide memo. Exh.P.D.
Kauli P.3 was also secured vide memo. Exh.P.E. Which was also attested by Muhammad Ameer. Gul Jehan P.W. Was the first informant and Mst. Manzoor Khatoon P.W.8 was the other eye-witness of the occurrence. Their evidence shall be discussed subsequently. Shaukat, Inspector appeared as P.W.9. Had recorded the F.I.R. Exh.P.F. On the basis of statement made to him by Gul Jehan P.W. He went to the spot, prepared injury statement Exh.P.G. And inquest report Exh.P.H. And had sent the dead body for post-mortem examination under the escort of Muhammad Ashraf, Constable. He had collected the blood-stained earth from the spot, made into a sealed parcel and secured the same vide memo. Exh.P.D. Kauli Exh.P.3 was also secured vide memo. Exh.P.E. By him. Blood- stained Chadar of the deceased P.1 and sealed phial P.2 were produced before him by Muhammad Ashraf P.W. Which he 'secured vide memo. Exh.P.C. After 19-9-1992 Ghulam Ali P.V.10 had partly investigated the case, arrested the accused and had filed the report under section 173, Cr.P.C.
7. Muhammad Afzal and Muhammad Ameer P.Ws. Were given up as unnecessary and the District Attorney tendered in evidence attested copy of plaint in suit titled Atta Muhammad v. Sher Muhammad Exh.P.1, report of the Chemical Examiner and closed the case for the prosecution.
8. P.W.7 had stated that Muhammad Khan and Muhammad Sher accused were real brothers whereas Muhammad Feroze was son of Ahmad Sher the real brother of Muhammad Ramzan who was the grandfather of Muhammad Khan. In his statement Exh.P.F. The witness has stated that the fire of Muhammad Akram hit at Pedow of Atta Muhammad whereas in his statement before the Court he stated that the fire hit the backside of his thigh. In his statement Exh.P.F. He had stated that the civil suit filed by his father had been decided against the accused a day before the occurrence whereas in iris statement before the Court he stated that the said suit was still pending. P.W.8 was the widow of Atta Muhammad deceased. She stated that at the barking of the dogs at midnight they all got up and saw all the three accused armed with guns. Muhammad Feroze raised Lalkara and Muhammad Khan accused fired at her husband which hit him on the back of his right thigh and he fell down and expired. The accused, according to the witness, were identified in the moonlight. The witness stated that she and Gul Jehan were awaken before the barking of the dogs and they had witnessed the accused coming towards them from a distance of about one furlong.
9. After the close of the prosecution case the accused were examined under section 342, Cr.P.C.
They denied before the police of the occurrence as put to them and Muhammad Khan appellant in an answer to question No,6 stated that deceased Atta Muhammad had filed a civil suit against his father and co-accused Muhammad Feroze which was decided in his favour. The P.W. Suspected that as the case has been decided against the accused they might have committed the murder of deceased Atta Muhammad. They had not seen the occurrence. The deceased was having enmity with so many persons. It was a blind murder and that he had been falsely implicated. Similar was the reply of other co-accused.
10. Before proceeding further I have to say words about document Exh.P.I. This was a certified copy of a suit under section 9 of Specific Relief Act, filed by Atta Muhammad against Sher Muhammad son of Muhammad Ramzan and Daulat Khatoon deceased through her son Feroze Khan and husband Ahmed Sher. This certified copy was prepared on 6-1-1993 and on that date the suit was still pending in the Court of Rana Muhammad Khan, Civil Judge, Joharabad. The copy was tendered in evidence on 9-1-1993. This document was not on the file of the case before the production thereof and the same had been obtained only three days before the production. This evidence relating to motive was not collected by the Investigating Officer and as such a prejudice was caused to the accused by the act of the Court in admitting the document without putting the accused to the notice thereof. I exclude Exh.P.I. From consideration and deprecate the practice of introducing evidence at the trial stage without the same having been collected by the Investigating Officer whose primary duty was to collect the evidence and produce the same before the Court for proper appreciation. The trial Court admitted that the civil suit was still pending between the parties regarding possession of land and the same was not decided in favour of the deceased a day prior to the occurrence but thereafter. The trial Court proceeded to assume that the parties developed strained relations due to the said litigation. I am afraid such assumptions have no bearing in the criminal cases. The facts alleged must be proved directly and if the fact was proved otherwise then the conclusion must be based on the facts proved or disproved and not on gathering of assumptions. It was clearly alleged by the first informant that the case was decided against the accused a day earlier to the fateful night and that the Lalkara was that they had come to give land and the same was thus very important for the purpose of appreciating the existence or otherwise of the motive. The prosecution has very crudely and illegally tried to prove the motive by placing on record the certified copy of the plaint which was obtained on 6-11993 and produced in Court on 9-1-1993 without obtaining formal permission of the Court which in my view, could not have been granted by the Sessions Court and in view of the above I am of the view that the motive as alleged had not been proved by the prosecution.
11. Regarding the ocular evidence, the dame is full of fallacies. The witness stated that they had identified the accused in the moonlit night and on verification of calendar it transpired that it was the night of 7th Rabi-ul-Awal and the moon had set before the midnight and even if there was some twinkling, it could not be sufficient to afford identification in the fields reflecting darkness due to standing crops. P.W.8 stated that she had seen the accused coming towards them while they were at a distance of about one furlong i,e, 220 yards which was in any case more than 100 Karams and it was humanly impossible to see and distinctly identify the person from a distance of a furlong.
12. There was contradiction in the description of injuries as given in Exh.P.F. And as stated by P.W.1.
Exh.P.A./1 in which P.W.1 had given the location of injuries clearly shows the seat of injury No,1 at the right buttock of the deceased and injury No,2 which was the exit wound was in front of the right thigh, almost in the middle. Pedow was a place distinct from buttock. It is the lower part of the belly and it can be safely assumed that P.W.7 and P.W.8 had not seen infliction of injuries on the person of Atta Muhammad deceased who was present at his Dera at the time of occurrence and that the names of the accused were given by P.W.7 and P.W.8 out of suspicion but none can be convicted for suspicion alone. I am also convinced that the statement of Mst. Manzoor Fatima P.W.8 was recorded after the receipt of post-mortem report to bring in line the same with the post-mortem report.
13. Ghulam Ali, S. H .0. P.W.10 had arrested the accused and he stated that they all remained with him on physical remand for 14 days and that during all those 14 days they pleaded innocence.
Nothing was recovered from their possession. The Investigating Officer had also admitted in Court that about 50 to 60 persons had appeared in defence of the accused who were prepared to take oath on Holy Qur'an in support of the plea of innocence taken by the accused during the investigation. P.W.10 further proceeded to state that:-- ".... It is further correct that during investigation it was revealed that some unknown passenger came to the Dera of deceased and asked him for water which deceased gave him in a Kauli and thereafter said passenger fired at deceased which resulted in his death. One Amir Bhiroka, who was cited as a prosecution witness is brother-in-law of deceased Atta Muhammad, appeared before me and stated that accused were innocent and in fact Ibraheem and Ahmad Shaloli were the assailants. The complainant party, however, insisted that accused present in Court were the real culprits. It was due to said reason that challan was submitted against the accused."
14. In view of the opinion of the Investigating Officer and the evidence of P.W.7 and P.VV.8 being in conflict with medical evidence and the statements of P.Ws.7 and 8 not inspiring confidence I am to hold that the prosecution failed to prove its case against the appellant beyond all reasonable doubt. The appeal is accepted. The conviction of the appellant recorded by Sessions Judge, Khushab on 30-1-1993 is set aside. He is acquitted. He shall be released forthwith if not required in any other case.