' The appellant Ghulam Nabi alongwith eight others namely Muhammad Anwar, Imtiaz Ahmad, Bashir, Liaqat Ali, Ahmad Khan, Inayat Ullah, Muhammad Shafi and Noor Hussain was charged and tried by the Court of Ch. Mazhar Hussain Minhas, Additional Sessions Judge, Gujrat under section 302/ 148/149/109, P.P.C., in a case arising out of F.I.R. No, 221, dated 29-5-1984 lodged at Police Station, Saddar, Gujrat. The learned Additional Sessions Judge vide judgement dated 31-3-1990 acquitted all the accused except the appellant giving them the benefit of doubt. However, he found the appellant guilty and convicted and sentenced him under section 302, P. P.0 . To life imprisonment and a fine of Rs,20,000. In default of payment of fine the appellant was ordered to undergo further R.I. For two years. The amount of fine if recovered, half of it was ordered to be given to the legal heirs of the deceased. Against his ,conviction and sentence the appellant has filed the appeal in hand.
2. Briefly the prosecution case is that on 29-5-1984 Muhammad Afzal complainant moved application Exh.P.B. To the Police in which he stated that about 6/7 days before accused Muhammad Shafi (since dead) collected his co-accused Muhammad Bashir, Liaqat Ali, Ashiq Hussain (since dead), Ahmad Khan and Muhammad Inayat in his flour mill at Wazirabad for planning to commit the murder of Muhammad Tufail deceased. Thereafter, in furtherance of pre- planning he got the abovenamed five accused arrested in a case at Police Station Wazirabad.
Accused Noor Hussain, Ghulam Nabi alias Kala (appellant), Anwar and Imtiaz were detailed for committing the murder of Muhammad Tufail. But the deceased came to know about their conspiracy upon which on 25-5-1984, he collected respectables of village Samma and Chak Ghazi namely, Muhammad Riaz, Muhammad Akbar, Ghulam Rasool etc. And asked them to inquire from the accused why they wanted to kill him. The respectables promised to tell him after inquiry from the accused why they were after his life. On 28-5-1984 Muhammad Tufail deceased called the complainant, Abdul Aziz and Ch. Nawab from Wazirabad for consultation and for his personal security.
' Muhammad Tufail informed them about all the facts upon which they advised him to take any step after the decision of respectables. On 29-5-1984 at about 7-30 a.m. The complainant, Muhammad Tufail, Abdul Aziz, Ch. Nawab and Ghulam Ghaus were going out of the house towards Dera in the southern side of the village. When they reached near Khokha of Basharat on Samma Road, accused Muhammad Bashir Liaqat, Ashiq Hussain (since dead), Ahmad Khan all armed with 112 bore guns. Muhammad Inayat armed with revolver, Anwar armed with dagger, Imtiaz armed with carbine, Noor Hussain armed with .12 bore gun and Ghulam Nabi alias Kala appellant armed with carbine attacked Muhammad Tufail, Muhammad Bashir raised Lalkara not to spare him upon which Noor Hussain fired with .12 bore gun hitting the deceased on his back. P.Ws. Abdul Aziz, Ghulam Ghaus, Ch. Nawab and complainant ran back and took shelter behind a house. In the meantime all the accused started firing at the deceased, who fell down on the ground. Anwar accused inflicted dagger blow to Muhammad Tufail in fallen condition. Muhammad Tufail succumbed to the injuries there and then. After the occurrence the accused ran away towards G.T.
Road in the south. The occurrence was witnessed by complainant and P.Ws. Abdul Aziz, Ch. Nawab, Ghulam Ghaus, Muhammad Ashraf and Muhammad Sadiq. The motive for the occurrence was stated to be that Muhammad Tufail deceased was challaned in the murder case of Nabi Ahmad, the brother of Muhammad Shafi accused (since dead) due to that grudge the accused committed his murder in conspiracy with Muhammad Shafi (since dead). Application Exh.P.B. Was sent to the police station for registration of case upon which case was registered, vide Exh.P.B./2.
3. The investigation of the case was conducted by Muhammad Latif, A.S.-l. (P.W.4), Abdul Rehman, Inspector (P.W.13) and Muhammad Shamim Ahmad (D.W.1). After completion of the investigation the accused alongwith the co-accused, since acquitted were challaned for trial. The prosecution produced Dr. Khalid Mehmood (P.W.1), Muhammad Riaz (P.W.2 ), Nazir Ahmad (P.W.3), Muhammad Latif (P.W.4), Akhtar Naqqash, Draftsman (P.W.5), Bashir Ahmad (P.W.9), Muhammad Arif (P.W.7), Muhammad Inayat (P.W.8), Muhammad.Lqbal (P.W.9), Muhammad Ashraf (P.W.1), Muhammad Afzal (P.W.11), Ghulam Ghaus (P.W.12) and Abdul Rehman (P.W.13 ) in support of its case. P.Ws.
Muhammad Akbar and Muhammad Akram were given up being dead. P.Ws. Ghulam Rasool, Muhammad Nawab, Muhammad Ashraf, Muhammad Sadiq and Dr. Muhammad lqbal, Assistant Chemical Examiner were also given up being unnecessary. P.Ws. Abdul Aziz and Shamim Khan were also given up being unnecessary.
4. P.W.1 Dr. Khalid Mehmood conducted autopsy of dead body of Muhammad Tufail and found following injuries on his person:--
5. (I) Fire-arm wound of entry 3 x 3 c.m. Rounded with inverted margins on the inferior angle of left scapula.
(2) Incised wound 7-1/4 x 2-1/2 c.m. On the front of abdomen 3" above the umblicus which is muscle deep.
(3) Multiple bruises 15 x 5 c.m. On the front of abdomen above the injury No,2.
(4) Fire-arm wound of entry rounded with invested margins 2 x 2 c.m. On the front of the abdomen near injury No,3.
(5) Bruise 2-1/2 x 2-1/2 c.m. On the right side of chest in the mid-axillary line.
(6) Bruise 2-1/2 x 2-1/2 c.m. On the right side of chest in mid-axillary line below injury No,5.
(7) Bruise 2 x 2 c.m. On the right side of abdomen upper part.
(8) Bruise 12 x 3 c.m. Below the injury No,7.
(9) Wound of entry 1/2 x 1/2 c.m. Founded with invested margins on the front of left shoulder which is muscle deep.
' On dissection the following was observed: ' Thorax: The bullet after entering the chest cavity through 7th and 8th ribs to which they damaged then damaged the left lung, and Khokha was removed. Diaphragm was damaged then it damaged the right lobe of liver and then seven metallic pieces were removed from the subcutaneous tissue of right side of chest lower part. About one thousand C.C. Of blood was present in the thoracic cavity.
' Abdomen: Right lobe of liver was damaged and there was nothing significant in other viscera in abdomen. About 88 C.C. Of blood was present in abdominal cavity. Injury No,2 has no peritoneal cut.
' Cranial Cavity: Nothing significant in cranial cavity was found. After the post-mortem examination, the doctor opined that all the injuries were ante-mortem. Injury No,2 was by sharp-edged weapon while rest were by fire-arm weapon. Injury No,1 was sufficient to cause death in ordinary course of nature due to haemorrhage and shock and all other injuries were contributory in causing the death. P.W.1 proved the postmortem report Exh.P.A. And sketch of injuries Exh.P.A./1 in his handwriting bearing his signatures.
5. P.W.4, Muhammad Latif S.-1./1.0. Conducted the initial investigation. Who while at bus stand Gujrat received application Exh.P.B. And forwarded it to the police station for registration of case with his note Exh.P.B./1. He prepared injury statement Exh.P.C. And inquest report Exh.P.D. Of deceased. He also on the same day took into possession the blood-stained earth vide Exh.P.F. He also got prepared site plan Exh.P.G. And its duplicate Exh.P.G./1 and made the notes in red ink on them. Akhtar Naqqash (P.W.5) is draftsman who prepared site plan Exh.P.G. And its duplicate Exh.P.G./1 in the scale of 1" = 20' Bashir Ahmad (P.W.9) is witness of recovery of blood-stained earth from place of earth vide memo. Exh.P.F. Muhammad Arif (P.W.7) is recovery witness of carbine P.1 taken into possession vide memo. Exh.P.J. P.W.11, Muhammad Afzal and Ghulam Ghaus (P.W.12) are eye-witnesses of the occurrence. Abdul Rehman, Inspector (P.W.13) partly investigated the case. On 29-5-1984 he recorded F.I.R. Exh.P.B./2, inspected the spot and recorded statements under section 161, Cr.P.C. And took into possession last worn clothes of the deceased vide memo. Exh.P.L. He also arrested the accusal-appellant. The prosecution closed its case by tendering in evidence the reports of the Chemical Examiner, Exh.P.M; and Exh.P.N., the reports of the Serologist Exh.P.O. And Exh.P.P. And report of the Fire-arms Expert Exh.P.Q.
6. The accused were examined under section 342, Cr.P.C. And all of them claimed that they have been implicated falsely due to enmity and were intIcent. The appellant and Imtiaz Ahmad and Anwar accused denied the recovery of any weapon of offence from them. Except Noor Hussain all declined to produce defence evidence or to appear as defence witness under section 430(2), Cr.P.C. The accused Noor Hussain produced D.W. I Shamim Ahmad Khan, S.P. After hearing the arguments on both sides the learned Additional Sessions Judge passed the impugned judgment under section 302, P.P.C. And sentenced him to life imprisonment and a fine of Rs,20,000 and in default of payment of fine to undergo further R.I. For two years. If the amount of fine is recovered that was to go to the legal heirs of the deceased.
7. In appeal the first contention of the learned counsel for the appellant is that the case initially set up by the prosecution has been improved at the time of trial by the prosecution witnesses drastically to bring it in line with the medical evidence and even then it could not. It has also been contended that the motive and conspiracy have not been proved and the recovery evidence is of no consequence and that the case against eight accused has been found false who have been acquitted and the appellant whose case was on better footing has been convicted by wrong appreciation of evidence and not construing the law applicable correctly. On the other hand the learned counsel for the State has supported the impugned judgment and has taken the stand that only that person has been convicted who has been found guilty at the hilt.
8. I have given due consideration to the valuable arguments on both sides and thoroughly scrutinized the record with their able assistance.
9. So far as the first contention of the learned counsel for the appellant is concerned the prosecution case as set out in the beginning was that "on 29-5-1984 at about 7-30 a.m. The complainant Muhammad Tufail, Abdul'Aziz, Ch. Nawab and Ghulam Ghous were going out of the house towards Dera in the southern side of the village. When they reached near Khokha of Basharat at Samma Road accused Muhammad Bashir, Liaqat, Ashiq Hussain (since dead), Ahmad Khan all armed with .12 bore guns and Ghulam Nabi alias Kala armed with carbine attacked Muhammad Tufail, Muhammad Bashir raised Lalkara not to spare him upon which Noor Hussain fired with .12 bore gun hitting the deceased on his back. P.Ws. Abdul Aziz, Ghulam Ghous and Ch. Nawab ran back and took shelter behind a house. In the meantime all the accused started firing on the deceased who fell down on the ground. Accused Anwar inflicted dagger blow to Muhammad Tufail in fallen condition. Muhammad Tufail succumbed to the injuries there and then. After the occurrence the accused ran away towards G.T. Road in the south. The occurrence was witnessed by the complainant and P.Ws. Abdul Aziz, Ch. Nawab, Ghulam Ghous, Muhammad Ashraf and Muhammad Sadiq". The F.I.R. Is silent as to where the carbine attack of Ghulam Nabi hit Muhammad Tufail deceased. However, at the trial P.W.11 Muhammad Afzal, who is maternal cousin of the deceased and was called by.Him for his personal security, made the statement that Noor Hussain accused fired with his .12 bore gun hitting the deceased on his chest. On receiving the fire shot deceased turned about upon which Kala accuseddired with carbine which hit the deceased on his back. Thereafter, accused Inayat armed with revolver, Ashiq armed with .12 bore gun, Ahmad Khan armed with .12 bore gun, Imriaz armed with carbine, Bashir armed with .12 bore gun fired at the deceased which hit on different parts of the body. On the other hand P.W.12 (Ghulam Ghous) has deposed that Ghulam Nabi alias Kala fired with his gun which hit Tufail accused on his back.
According to the medical evidence injury No,1 was fatal which has not been attributed to the appellant. In this manner the ocular evidence is not only contradictory as to the weapon of offence, the seat of injury and the direction of infliction of injury. The carbine is not a gun, and the chest is not back. Similarly, front and hind are totally opposite. It shows that the P.Ws. Are not speaking the truth and they have not seen the occurrence. Their testimony has already been discarded and disbelieved by the learned Trial Court concerned eight accused and, in the circumstances, the appellant is also equally entitled to the benefit of doubt.
10. So far as the second contention of the learned counsel for the appellant is concerned it is the non-proof of motive as alleged. The case as set out by the prosecution in the F.I.R. Was that Muhammad Tufail deceased was challaned in the murder case of Nabi Ahmad, the brother of accused Muhammad Shafi (since dead) and due to that grudge the accused committed his murder with conspiracy with Muhammad Shafi (since dead). According to the first information report 6/7 days prior to the occurrence, Muhammad Shafi son of Muhammad Hassan had collected all the petitioners in his flour mills, with a purpose, for murdering ro././ ' Muhammad Tufail (deceaseil), first cousin of the complainant, and according to the conspiracy hatched up by them, had got the 5 petitioners arrested at Police Station Sadar, Wazirabad, while Nur Hussain son of Allah Ditta, Ghulam alias Kalu, Anwar son of Rehmat and Imtiaz son of Ahmad Khan were deputed for the murder of Muhammad Tufail. However, Muhammad Tufail came to know of this conspiracy. On 25-5-1984 he collected Muhammad Riaz, Muhammad Akbar and Ghulam Rasul residents of village Samman to join him, to enquire, from Muhammad Bashir etc. As to why they want to murder him (Muhammad Tufail). These persons while sitting as a Punchayat in which the complainant was also present, promised with Muhammad Tufail that they will inform him after making enquiries. According to the complainant a day before the occurrence Muhammad Tufail had sent for the complainant, his uncle Abdul Aziz and Nawab to Ghazi Chak for consultations and for his protection. All these three persons had reached the house of the deceased on the evening preceding the day of occurrence. This story of hatching conspiracy having earlier been hatched up by Muhammad Shafi and fact of the accused having been got arrested at Police Station Sadar, Wazirabad was found false during the investigation. Further, there is no connection of the appellant with Muhammad Shafi by way of relationship and the complainant Muhammad Afzal (P.W.11) being not corroborated by anyone else, the motive cannot be said to have been proved. The most important witness was Muhammad Riaz (P.W.2) who has been turned hostile and he has shown complete ignorance about any Panchayat, as such, to the extent of motive having not been proved the learned Additional Sessions Judge has correctly appreciated the evidence on record and I am also of the considered view that the motive and conspiracy as alleged in the F.I.R. Stand not proved.
11. Regarding the recovery of carbine it has come on record that the appellant got recovered carbine (P.1) from his house which was taken into possession by Abdul Rehman, Investigating Officer (P.W.13) vide recovery memo. Exh.P.J. Attested by Muhammad Arif (P.W.7) and Muhammad Akram the given up P.W. But P.W.7 has frankly conceded that the Baithak, that is, the scene of recovery was jointly owned by accused Ghulam Nabi and his family members. In such circumstance it cannot be said that the recovery was from the exclusive possession of the appellant. The learned State Counsel could not controvert the arguments of the learned counsel for the appellant in the presence of the above scrutiny of evidence.
12. For the above reasons the appeal merits to be allowed and the same is allowed. The impugned conviction and sentence are set aside.