Ghulam Sadiq and Ata Muhammad were challaned by Choti Police under section 302/34, P.P.C. For having committed the murder of Ghulam Akbar deceased. They were also charged for attempt to murder Mehr Hussain. On 29-9-1988 when the trial was in progress, it was reported that Ata Muhammad co-accused had been murdered.
2. Vide judgment dated 6-6-1989 Ghulam Sadiq appellant was convicted under section 302, P.P.C.
And sentenced to life imprisonment and a fine of Rs.30,000, in default of payment of fine, it was directed that the appellant shall suffer further rigorous imprisonment for five years and in case this amount was realized, a sum of Rs.20,000 shall be paid to the legal heirs of the deceased as compensation. He was acquitted of the charge under section 307, P.P.C.
2. Brief facts as stated in the F.I.R. Were to the effect that on 25-8-1986 at 7-00 p.m. Complainant alongwith Ghulam Akbar deceased, Dost Muhammad P.W. 8 and Ashiq Hussain given up P.W., who were real brothers inter se were going back to their home from their agricultural land. Ghulam Akbar deceased was ahead of them. Meanwhile appellant Ghulam Sadiq and Ata Muhammad both armed with guns .12 bore came out of their houses and raised Lalkara that Ghulam Akbar and his aforesaid brother would be taught a lesson for not handing over the land given in exchange.
Sadiq fired his gun from a short distance which hit Ghulam Akbar on his abdomen. Ghulam Akbar fell on the ground. Ata Muhammad fired at the complainant which did not hit him. Both appellant and Ata Muhammad ran away with their weapons of offence. Ghulam Akbar succumbed to the injuries after a while.
3. About 10 or 11 years prior to the occurrence, vide an oral exchange Ghulam Akbar got land measuring 4 Bighas from Ata Muhammad situated at Qaim Wala. He cultivated it. Two or three years after this exchange Sadiq and Ata Muhammad asked Ghulam Akbar to give the said land back to them but he refused to do so. Ghulam Raza who always supported the appellant and Ata Muhammad, summoned Ghulam Akbar at his Dera and told him to hand over the possession of this land to them. Ghulam Akbar did not accept this proposal. It insensed Ghulam Raza. He threatened Ghulam Akbar deceased that he would be taken to task if he opted to defy or he dug into his heals.
4. F.I.R. Exh. P.C. Was recorded on 25-8-1986 on the statement of Mehr Hussain P.W.7 complainant by Habib Ahmad S.I./S.H.O. Police Station Choti, District Dera Ghazi Khan. He proceeded to the place of occurrence on the same day. He prepared the inquest report Exh. P.H. And injury statement Exh.
P.1 of the dead body of Ghulam Akbar. He collected the blood-stained earth and took it into possession vide memo. Exh. P.D. He sent the dead body of Ghulam Akbar for autopsy. After post- mortem examination Riaz Hussain, Constable produced the last worn clothes of the deceased shirt.
Exh. P. I , Chadar Exh. P.2 alongwith sealed phial containing four pellets before the Investigating Officer who took them into possession vide memo. Exh. P.E. On 28-8-1986. Habib Ahmad got prepared the site plan Exhs. PB, PB/1 and PB/2 from the Patwari Halqa. He arrested Sadiq appellant and Ata Muhammad on 26-9-1986. Ghulam Sadiq while in custody led to the recovery of .12 bore gun Exh P.3 from his house situated in village Qaim Wala alongwith its licence Exh. P.4 which were taken into possession by him vide memo. Exh. P.F.
5. On the same day Ata Muhammad also got recovered his licensed gun, Exh. P.5 Habib Ahmad recorded the statement of the P.Ws. And challaned the appellant.
6. Dr. Muhammad Nawaz Dilshad, P.W.1. Conducted the autopsy. On opening the thorax the Medical Officer found the following injuries on the dead body:--
(1) Four circular wounds each measuring 1/4" x 1/4" in an area of 1-1/2" x 1-1/2" 11 inverted margins, situated at mid abdomen, slightly on right side, four inches supro lateral to umbilicus. It was wound of entry. There was wound of exit on back.Of left side of abdomen, three inches from mid line, with everted edges 1/3" x 1/3" size. Blood was present on the mouth of exit wound.
(2) An ante-mortem circular bruise measuring 1" x 1" situated 1-1/2" infro lateral to abovementioned of entry and 4-1/2" umbilicus on front of abdomen. The abdominal aorta was punctured.
The doctor observed that peritoneum was perforated, corresponding to injury No. 1. Abdomen cavity was full of blood. Stomach contained partly digested food. Small intestines were perforated corresponding to injury No. 1 and digested food was present in the intestine. Bladder was full of urine. All other organs were healthy.
Death according to him had occurred on account of shock and haemorrhage. The injury No. l was dangerous to life and was sufficient to cause death in the ordinary course of nature. The time between the death and injury was within an hour.
7. After close of prosecution case the statement of the accused under section 342, Cr.P.C. Was recorded to which he pleaded not guilty. He got his statement recorded under section 340(2), Cr.
P.C. On oath wherein he stated that he was innocent and in fact he was involved in this case by the complainant party due to previous enmity.
8. Ocular version was furnished by P.W.7 Mehar Hussain and P.W.8 Dost Muhammad. Recovery of weapon of offence was attested by Mehar Hussain P.W.7. P.W.9 was the investigating officer whereas P.W.1 Dr. Muhammad Nawaz Dilshad conducted the autopsy. The rest were the formal witnesses.
9. Learned counsel for the appellant submits that the appellant deserves acquittal of the charge on the following grounds:--
(a) That the prosecution witnesses were hostile to the appellant and his co---accused Ata Muhammad. Their evidence, therefore, could not be believed.
(b) That there was sufficient material on the record to demonstrate that the appellant and his co- accused Ata Muhammad (deceased) had serious differences with each other because their families had been feuding for years over a family matter. It could not, therefore, be justified with cogency that they colluded inter se to kill the deceased.
(c) That the appellant failed to prove the motive as there was no sufficient evidence to conclude that Ata Muhammad had in fact exchanged the land with Ghulam Akbar deceased.
10. I have perused that record minutely with the assistance of the learned counsel of both the parties.
11. The learned Lower Court has disbelieved the evidence of recovery of incriminating weapons and rightly so for the reason among others that the weapons were not sent to the Forensic Science Laboratory.
12. P.W.7 Mehar Hussain and P.W.8 Dost Muhammad are the real brothers of the deceased. Their enmity with Ata Muhammad established on the record. It was conceded by P.W.7 that their real enemy was Ata Muhammad and the appellant's role was repulsive to the extent that he sided with his co-accused. B There were many houses around the place of occurrence but there was nothing on the record why the inhabitants of the area did not reach there at the relevant time. In view of above no implicit; reliance can be placed upon their statements.
13. The alleged agreement of sale was admittedly an oral one whereby Ata Muhammad and Ghulam Akbar deceased exchanged the land with each other in Mauza Qaim Wala. This agreement took place 10/11 years prior to the occurrence but it was intriguing to observe that it was neither reduced into writing nor was demanded so by either party. The evidence as to who was present when the parties agreed to exchange the land was materially discrepant. It was stated by P.W.7 that Ghulam Raza Khan had asked Ghulam Akbar deceased to return the exchanged land to the accused persons. However, in cross-examination he conceded that he was not present when his brother Ata Muhammad was asked to return the land. There was inconsistency in the statements of the witnesses regarding the presence of the persons when Ghulam Raza Khan made the aforesaid demand. Incorporation of Ghulam Akbar's name as tenant in Khasra Gardawari or as a co-sharer in the record of rights did not lead to the only inference that the deceased had exchanged his land with Ata Muhammad or Ghulam Akbar possessed the same under the agreement of sale. It can, therefore, be safely concluded that the prosecution failed to prove the factum of exchange of land which allegedly served as a motive to kill the deceased.
14. From the resume of above facts it was evident that the appellant's involvement in the present case was conjectural. The prosecution has failed to bring home the guilt to the appellant beyond any reasonable doubt. The appellant, therefore, is acquitted of the charge. He is in the Jail. He shall be released forthwith if not required to be detained in any other case.