' This criminal appeal calls into question the legality and propriety of the judgment, dated 18-7-1992 passed by the learned Additional Sessions Judge, Gujranwala, whereby he convicted Ihsan Ullah appellant under section 102, P.P.C. For the murder of one Bashir Ahmad son of Sarang, and sentenced him to life imprisonment and a fine of Rs,20,000 or in default thereof to undergo further R.I. For two years. The appellant was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased, failing which he would suffer further R.I. For six months. However, the rest of the co-accused of the appellant were acquitted of the charges against them.
2. The prosecution story as narrated in the F.I.R. By Bashir Ahmad, complainant (P.W 7) is that on 5- 6-1990 at about 6-00 a.m. Complainant, Nazir Ahmad son of Ghulam Qadir and Bashir Ahmad (deceased), son-in-law of the complainant were present in the complainant's house. At that time Ihsan Ullah, Aman Ullah, Bashir Ahmad and Gulzar accused while armed with guns and Riasat Ali accused reached the house of Ghulam Rasool son of Nabi Bakhsh Mochi and started firing. Bashir Ahmad deceased went towards the Haveli of Nazir son of Muhammad Powli for bringing chaff/fodder. Ihsan Ullah, accused fired at Bashir Ahmad. Deceased with his gun which hit him on his right eye and he fell down. The remaining accused also made firing. They took Bashir Ahmad deceased to Civil Hospital, Hafizabad in injured condition. However, after examining him, the Medical Officer referred him to General Hospital, Lahore. They took him towards Lahore but he expired before reaching Lahore. The complainant, Asghar and Nazir (given up) P.Ws. Witnessed the occurrence.
3. The motive for the occurrence as stated was that Zaman co-accused (since dead) was running a shop and about 3/4 days prior to the occurrence, the complainant and the accused were sitting in his shop and accused quarreled with the complainant and gave him beating. The complainant proceeded towards his house put the accused made firing at him. The complainant reached his house and told his daughter, Mst. Azra about the aforesaid incident and she told the deceased Bashir Ahmad (her husband) about the same who abused the accused while standing in the complainant's house. On the following day, Bashir Ahmad deceased went towards his fields and when he came back, to his Dera, accused fired at him. However, respectable of the village reached the complainant's house and asked them not to quarrel. The accused killed Bashir Ahmad deceased due to abovementioned grudge.
4. At the trial the prosecution examined as many as 10 witnesses in support of its case. Bashir Ahmad (P.W.7), the complainant furnished the ocular amount of the occurrence. Muhammad Rafique (P.W.5) and Muhammad Afzal (P.W.6) were recovery witnesses. P.W.8, Dr. Muhammad Javed Akbar and P.W.9, Dr. Capt. Khalid Farooq furnished the medical evidence while P.W.10, Manzoor Hussain, S.-I. Investigated the case. Rest of the witnesses are formal in nature.
5. Muhammad Rafique (P.W.5) stated that about two years back he joined the investigation of this case and in his presence Aman Ullah accused present in Court while in police custody led to the recovery of a gun .12 bore P.3 and the same was taken into possession vide memo. Exh.P.D. Signed by him. On the same day, Bashir Ahmad accused present in Court while in police custody led to the recovery of gun .12 bore P.4, which was also taken into possession vide memo. Exh.P.E. Signed by him.
6. Muhammad Afzal (P.W.6) stated that about two years back he joined the investigation and in his presence Gulzar accused present in the Court while in police custody led to the recovery of gun .12 bore P.5 and the same was taken into possession vide memo. Exh.P.E. Signed by him. Similarly Ihsan Ullah accused while in police custody led to the recovery of a gun .12 bore, and the same was taken into possession vide memo. Exh.P.G. Signed by him. Muhammad Aslam P.W. (not produced) was also with him at the time of recovery.
7. P.W.7, Bashir Ahmad complainant has reiterated the same what he had stated in the F.I.R. Exh.P.B.
However, during cross-examination he denied that father of Gulzar etc. Had caused injuries on the person of his father and they were convicted. He admitted that the deceased was involved in many theft cases registered at different police stations in different districts. He did not know about the number of cases. He could not rebut that he was involved in 39 cases of theft. The deceased resided in separate house which was at a distance of 35 Karams from the complainant's house. He claimed to have stated in Exh.P.B. That all the accused except Riasat Ali were armed with guns. On confrontation, with Exh.P.B., it was found missing. He had not stated in Exh.P.B. That the accused were armed with fire-arm. On confrontation it was found so recorded.
8. Dr. Capt. Khalid Farooq, C.M.O. Tehsil Headquarters Hospital, Hafizabad stated that on 5-6-1990 at 8-15 a.m. He conducted medico-legal examination of injured Bashir Ahmad son of Ali Muhammad aged 45 years, resident of Shori Chattha Police Station Hafizabad and observed the following on his person:-- "Fire-arm wound of entry 1 x 1 c.m. On inner part of right eye. Edges were inverted, right eye was black and eye ball was bulging out, wound was bleeding profusely. Injured was unconscious. Pulse 90 p.m. Blood pressure 160/120. Respiration was irregular and gasping."
' In his opinion the injury was dangerous and of fire-arm weapon and was fresh. Taking into consideration the condition of the injured, the patient, was referred to General Hospital, Lahore.
Exh.P.I. Is the correct carbon copy of the medico-legal report and Exh.P.I./1 is the sketch of injury which are in his hand and signed by him.
9. Dr. Muhammad Javed Akbar, Medical Superintendent, Tehsil Headquarters Hospital, Nankana Sahib stated that on 5-6-1990 he was posted as C.M.O. At Tehsil Headquarters Hospital, Hafizabad and on the same day, he conducted post-mortem examination on the dead body of Bashir Ahmad son of All Muhammad Caste Chorariah, resident of Shori Chattha aged 45 years. The dead body was brought by Muhammad Ashraf, Constable No,381 of Police Station Saddar Hafizabad and Muhammad Sharif, Constable No,564. The dead body was identified by Muhammad Inayat son of Muhammad Din caste Jat Sial resident of Shori Chattha and Sana Ullah son of Rehmat Khan of the same village. It was the dead body of middle-aged person with average physique and built. His face was pale. His eyes and mouth were closed and he was lying in supine position. His face was also blood-stained. Rigor mortis was present. Post-mortem staining were present on the dependant parts. The dead body was clad in white coloured Dhoti, and off white coloured Kurta which was bloodstained. The said patient was examined by C.M.O. Morning duty when brought in moribund condition at 8-15 a.m. And due to serious condition of the patient, he was referred to General Hospital, Lahore on the said date and time. On the way to Lahore at about 12-12 p.m.
According to the statement of the companion of the patient, the patient expired and then they brought the patient back to Tehsil Headquarters Hospital, Hafizabad for post-mortem examination.
A copy of the Medico-legal Report No,442/90, dated 5-6-1990 of the said patient was attached herewith. He observed the following injury on the person of the deceased:-- "A fire-arm wound of entry rounded in shape 1 c.m. x c.m. On the inner part of right eye. The edges of the wound were evened. The right eye was black and eye ball was collapsed and clotted blood was present in intra ocular space."
10. On dissection, on opening the cranial cavity right temporal region of the skull was thrashed into a cominuted fracture of the temporal bone due to the endeavoring out coming fire-arm shot (pellet) defaced which had lodged just beneath the skull at the site. The whole brain was ecchymosed and congested and dark chocolate colour blood was present in the brain cavity due to intracranial bleeding. All the abdominal organs were healthy and intact while stomach contained very small amount of digested food. Small intestine contained digested food. The large intestine contained faecal matter and gases, while urinary bladder was full of urine.
11. In the opinion of the doctor, death of the deceased was due to shock and intracranial hemorrhage as a result of injury No,1 which was ante-mortem and fatal in nature and was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between the injury and death was about 5 hours and between death and post-mortem was about 6 hours. After post-mortem examination, he handed over a well-stitched cropse along with police papers, post- mortem report, deceased's clothes and sealed bottle containing pellet to the police. Exh.P.H. Is the correct carbon copy of post-mortem report and Exh.P.H./1 is the diagram showing the location of injury which are in his hand and signed by him. During cross-examination he stated that the deceased had taken his last meals about 8 hours before his death. The direction .Of the injury was from front to back.
12. Manzoor Hussain, S.-I. P.W.10 stated that on 5-6-1990 he was posted as S.H.O., Police Station Saddar, Hafizabad, Bashir Ahmad complainant appeared before him and made statement Exh.P.B.
Which was read over to him and he thumb-marked the same in token of its correctness. He recorded Exh.P.B. Without any addition or omission on his part and sent the same to the police station for formal registration of the case. He prepared inquest report Exh.P.J., injury statement Exh.P.K. And drafted application Exh.P.L. For conducting post-mortem examination and handed over the dead body to the constables for post-mortem examination. He reached the spot and after site inspection, secured blood-stained earth from the spot and the same was made into a sealed parcel vide memo. Exh.P.M. He also prepared rough site plan of the place of occurrence, Exh.P.N. He recorded statements of the P.Ws., searched the accused but they were not found. On 5-6-1990 after post-mortem examination, Muhammad Sharif, Constable produced before him last-worn clothes of the deceased Dhoti P.21 and shirt P.2 along with a sealed phial and the same were taken into possession vide memo. Exh.P.A. He got prepared site plans Exh.P.C. And Exh.P.C./1 from the draftsman and notes in red ink on the site plans are in his hand and signed by him. He also obtained photographs of the place of occurrence showing pellets marks on the walls. He arrested Riasat Ali, Muhammad Zaman, Aman Ullah, Bashir Ahmad and Gulzar accused on 10-7-1990 whereas Ihsan Ullah accused was arrested on 17-7-1990. On 23-7-1990, Aman Ullah accused while in police custody led to the recovery of gun .12 bore P.3 and the same was taken into possession .Vide memo. Exh.P.D. On the same day, Bashir Ahmad accused while in police custody led to the recovery of gun .12 bore P.4 and the same was taken into possession vide memo. Exh.P.E. He had also prepared rough site plans of the places of recovery of guns Exh.P.D./1 and Exh.P.E./1 respectively. On 24-7-1990 Gulzar accused while in police custody led to the recovery of gun .12 bore P.5 and the same was taken into possession vide memo. Exh.P.F. He prepared rough site plan of the place of recovery of gun P.5 Exh.P.F./1. On 29-7-1990. Ihsan Ullah accused while in police custody led to the recovery of gun .12 bore and the same was taken into possession after making the same into sealed parcel vide memo. Exh.P.G. He had also prepared rough site plan of the place of recovery of said gun Exh.P.G./1. He recorded statements of remaining P.Ws. He handed over the parcels and the case property to Moharrir for safe custody in Malkhana and for onward transmission to the concerned offices. After completion of the investigation, he challaned the accused. However, during investigation Muhammad Zaman and Riasat Ali were found to be innocent and their names were placed in column No,2 of the challan.
13. The accused when examined under section 342, Cr.P.C. Denied the allegations levelled against them by the prosecution and pleaded their innocence. Ihsan Ullah accused/appellant in reply to a question why this case against you and why the P.Ws. Have deposed against you, stated as follows:-- "The deceased was habitual thief and he was involved in numerous theft cases. He suspected myself and my family members to be responsible for his involvement in different cases. He and his father-in-law thought that we used to give information about his misdeeds to the police. We have been involved due to enmity and suspicion."
14. The learned trial Court, taking into consideration all the facts and circumstances, convicted and sentenced Ihsan Ullah appellant as stated above while rest of his co-accused were acquitted of the charge against them.
15. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance. The learned counsel for the State opposed the appeal and contended for maintaining the conviction and sentence awarded to the appellant vide the impugned judgment. However, the contentions raised by the learned counsel for the appellant in support of the present appeal are duly supported by the evidence on the record. In this respect, it may be pointed out that the complainant P.W.7 had not claimed to be an eyewitness while recording his complaint Exh.P.B., on the basis of which F.I.R. Exh.P.B./1 was lodged and that his entire testimony at the trial, in fact, contradicts the contents of the said F.I.R.; and as his house has not been stated at the spot in question in the site plan Exh.P.C., therefore, it is hereby remarked that his entire, testimony deserves to be discarded. Furthermore, the prosecution had given up P.Ws.
Named in the F.I.R. And the only legal presumption that can be drawn under such circumstances is that if they had been produced they would not have supported the case of the prosecution. In addition thereto, recovery effected is of no help to the prosecution, as no crime empties had been recovered and as such the recovered weapon has not been proved to have been used in the occurrence in question. The failure of the prosecution to prove the motive further weakens the; case of the prosecution. Therefore, it is hereby held that under the facts and circumstances highlighted, the prosecution had failed to prove its case against the appellants beyond reasonable doubt.
16. Therefore, pursuant to the above discussion, the present criminal appeal is hereby allowed and the impugned judgment is set aside. Resultantly, the appellant stands acquitted of the offences charged. He shall be released forthwith, if not required to be detained in any other case.