1. This judgment will dispose of Criminal Appeal No,264 of 1994 filed by Ghulam Rasool against his conviction and sentence and Criminal Revision No,115 of 1995 filed by Ghulam Muhammad complainant for enhancement of the sentence of Ghulam Rasool convict, directed against the judgment dated 11-5-1994 passed by Mr. Pervaiz Ali Chawala, Additional Sessions Judge, Gujranwala.
2. 2.The brief facts as revealed from the F.I.R. Exh.P.D. recorded on the statement of Ghulam Muhammad P.W.3, uncle of Mansha deceased are that on 14-4-1991 at about 5.30 p.m. the complainant alongwith his nephew Muhammad Mansha deceased as well as Muhammad Abid Hussain P.W.4 were proceeding towards Haveli of Muhammad Mansha. When they reached near the house of Mushtaq situated on the main road, he saw Ghulam Rasool appellant armed with 12 bore shot gun was engaged in fighting with Shaukat and Muhammad Ramzan. Muhammad Mansha intervened to ger them separated but Ghulam Rasool fired a shot from his gun which instead of hitting Muhammad Ramzan hit Muhammad Mansha on right side of his chest and arm.
3. Muhammad Mansha fell down on account of injuries. The complainant alongwith his companions removed him to Civil Hospital, Noshera Virkan and obtained his Medico-Legal Report. He was referred to Civil Hospital, Gujranwala. Unfortunately he succumbed to the injuries and expired at 3.30 a.m. on 15-4-1991. His Postmortem was conducted at 10.45 a.m. on the same day, by Dr. Hafeez-urRehman (P .W .11) .
4. 3.Earlier, Muhammad Mansha had been medically examined by Dr. Ashfaq Ahmad, S.M.O., R.H.C., Noshera Virkan on 14-4-1991 at 6.30 p.m. who found the following injuries on his person:--
(1) A fire-arm wound 1 c.m. circular x going deep on front of right shoulder and margins were black.
5. (2)A fire-arm wound 1 cm circular x going deep on the front of the right chest 7 c.m. below the injury No, 1.
6. (3)Fire-arm wound 1 c.m. circular x going deep on front of right chest at the entrance and at the exit 1-1/4 c.m. fire-arm wound on back of chest. Wound was through and through and 2 c.m. from injury No,2.
7. (4)Fire-arm wound 1 c.m. circular x going deep on front of right chest at the entrance and 1-1/4 c.m. on the back of right chest and margins were black at the entrance, 3 c.m. from injury No,3.
8. (5)Fire-arm wound 1 c.m. circular x going deep on front of chest, outside of the chest 4 c.m. from injury No,2.
9. (6)A fire-arm wound 3 c.m. x 1 c.m. on outer side of right upper arm.
10. (7)Fire-arm wound 1 c.m. circular on outer side of right upper arm at the entrance and at the exit 1-1/4 c.m. circular on back of right upper arm at the exit.
11. (8)A fire-arm wound 1 c.m. circular x going deep on inner side of right upper arm alongwith fracture humerus.
12. (9)A fire-arm wound 1 c.m. circular x going deep on outer side of right upper arm and the margins were black.
13. Dr. Hafeez-ur-Rehman (P.W.11) also noted the injuries sustained by Muhammad Mansha deceased as described in his Medico-Legal Report. All the injuries were found to be ante-mortem caused by fire-arm which corresponded to the injuries mentioned in the M.L.R. issued by Dr. Ashfaq Ahmad P.W.5. The cause of death was rib fracture, damage to right pleura, right lung and right pulmonary vessels which caused haemorrhage and shock. The injury was sufficient to cause death in ordinary course of nature. Probable time between injuries and death was one to two hours whereas time between death and post mortem was 12 to 24 hours.
4. F.I.R. Exh.P.D. was recorded by Safdar Hussain M.H.C. and copy of the same was sent to Muhammad Akram S.I. (P.W.10). He after receipt of the same reached hospital at Gujranwala but the injured had been removed to Mayo Hospital, Lahore. He followed him up. He recorded the statements of the P.Ws. on his visit to the place of occurrence. In the meanwhile he was informed that the injured had expired. Therefore, section 302. P.P.C. was substituted for section 324, P.P.C. He visited the spot, collected blood-stained earth vide memo. Exh.P.E. He also prepared the injury statement Exh.P.J. and inquest report Exh.P.K. He also got prepared the site plans Exhs.P.C. and P.C./1 from the Draftsman. He also secured the last worn clothes of the deceased and a sealed phial containing pellets and took them into possession vide memo. Exh.P.A.
14. Thereafter, the investigation was taken up by Riaz Ali Shah Inspector/S:H.O. (P.W.9). He arrested the appellant on 3-5-1991 and on his pointation effected recovery of gun (P.3) from his residential house situated at village Baddo Ratta and took the same into possession vide memo. Exh.P.G. The investigation was then transferred to D.S.P. Kamoke. After completion of the investigation the appellant was sent up to face trial in the Court of Sessions which was entrusted to the Court of learned Additional Sessions Judge.
5. The prosecution in order to prove the guilt of the appellant examined 9 witnesses. Muhammad Ikram P.W.1, Arif Hussain Iyaz Draftsma n P.W.2, Muhammad Ali P.W.6 and Safdar Hussain A.S.I. P.W.7 are formal in nature and they performed various acts during the investigation. Ghulam Muhammad complainant (P.W.3) and Abid Hussain (P.W.4) furnished eye-witness account of the occurrence. The statements made by Dr. Ashfaq Ahmad (P.W.5) and Dr. Hafeez-ur-Rehman (P.W.11), Riaz Ali Shah, Inspector/S.H.O. (P.W.9) and Muhamamd Akram S.I. (P.W.10) have been detailed above. The learned Prosecutor after examining the aforesaid witnesses tendered in evidence the report of Chemical Examiner Exh.P.N. and that of Serologist Exh.P.O. and with that closed the case of the prosecution. The appellant when examined under section 342, Cr.P.C. denied the allegations against him. In answer to Question No,5, as to why this case against him and why the P.Ws. deposed against him, he made the following reply:-- "Due to enmity with the P.Ws. The facts of the matter is that 7 days prior to the murder of Munsha, I and Rafique P.W. of this case 'had quarrelled with each other, so he got me involved through his relatives. On the day of occurrence Muhammad Munsha deceased fired at Gulzar Ahmad (given up P.W.), who sustained injury on his thigh, but luckily survived and in retaliation he fired at Muhammad Munsha who sustained fatal injuries. Both were shifted to Rural Health Centre, Noshera Virkan for medical treatment and were examined by Dr. Ashfaq Ahmad P.W.5, as private cases, almost simultaneously. Doctor P.W.5 handed over to police 'Dhoti' of Gulzar P.W. having corresponding holes. When Dr. Ashfaq Ahmad appeared as P.W.5, the prosecution with ulterior motive restricted his statement by proving the M.L.R. of Muhammad Mansha only and not allowed him to prove M.L.R. of Gulzar P.W. So, during cross-examination M.L.R. of Gulzar was got proved.
15. Initially the prosecution put forward its case that I had fired at one Muhammad Ramzan but instead of Muhammad Ramzan, the fire hit Muhammad Munsha deceased and no motive was attributed to me but later on, the complainant party changed its story and invented a false motive of setting ablaze 'Parali' of Muhammad Munsha and also improved the story that I intentionally murdered Muhammad Munsha. In this way, firing of Muhammad Munsha at Gulzar was not disclosed and Gulzar restrained to lodge F.I.R. against Munsha, so that stigma of crime by Munsha may be brushed aside. I am the only son of my parents, the others being daughters. The complainant party wanted to grab the property of my parents by putting pressure of this case.
16. Many police officials have remained under the influence of complainant party."
17. He produced certified copies of order dated 19-2-1992 passed by Mr. Justice Sajjad Ahmad Sipra as Exh.D.E. and order dated 3-10-1991 passed by Ch. Riaz Ahmad, Additional Sessions Judge, Gujranwala as Exh.D.F., and School Leaving Certificate Exh.D.G. to prove his date of birth. He, however, did not appear as his own witness as envisaged under section 340(2), Cr.P.C.
18. 6.Learned trial Court on conclusion of the trial, held the appellant guilty of committing Qatal-e- Amd of Munsha deceased. Accordingly, he was convicted under section 302(b), P.P.C. and sentenced with imprisonment for life as Tazir. He was directed to pay compensation of Rs,40,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to undergo imprisonment for six months.
19. 7.Learned counsel for the appellant has argued that the learned trial Judge has erred in convicting the appellant. The case as set up by the prosecution in the F.I.R. at initial stage has totally been deviated from in the statements .made during trial. The material witnesses such as Shaukat and Ramzan mentioned in the F.I.R. were not examined. Similarly Gulzar P.W. who had been injured during the incident was although cited as a witness but was not produced on the ground that he had been won over by the prosecution. It is lastly submitted that the medical evidence contradicts the eye-witness account, therefore, the appellant is entitled to be acquitted. Learned counsel for the State has opposed the prayer and supported the impugned judgment.
20. 8.I have considered the arguments raised at the Bar carefully and also perused the record. The first version given by the prosecution itself was that the appellant was engaged in fighting with Shaukat and Ramzan. Mansha deceased tried to intervene as he intended to separate the parties but the appellant fired a shot at Ramzan which accidentally hit Mansha deceased, who subsequently succumbed to the injuries and died in the hospital. During trial this version was changed and both the eye-witnesses namely Ghulam Muhammad complainant P.W.3 and Abid Hussain P.W.4 stated that when they were proceeding towards the place of occurrence, fight in between Ghulam Rasool appellant on one hand and Shaukat and Ramzan on the other hand had finished. The appellant fired a shot straight on Mnasha hitting his right arm and right chest. New motive was introduced that 10/15 days prior to the occurrence, the appellant had set on fire 'Parali' in the Haveli of Mansha on which Mansha had abused him and also given him slap. This version obviously is totally different from the version taken up in the F.I.R. During cross-examination both the eye-witnesses were confronted with their previous version but no satisfactory explanation was tendered. It appears that the witnesses have not come forward with true version and have tried to implicate the appellant by imputing a direct fire on the person of the deceased. Initially the case of the prosecution was that even if another person than the victim was hit by the accused, he would be guilty of murder, as per principle laid down under section 301, P.P.C. The witnesses have made improvements which is clearly a dishonest act and has rendered the credibility of the witnesses as extremely unacceptable. On account of adopting a new version it becomes even difficult to place reliance or to accept the initial version that the appellant in fact intended to kill Ramzan but Mansha deceased accidentally fell victim to the fire shot. The argument by the learned counsel for the State that in case the version taken up by the prosecution witnesses during trial is not accepted, the initial version may be considered and relied upon, does not have much force. In considering the testimony of a prosecution witness the most important aspect is to see whether it inspires confidence or not? As the prosecution witnesses have changed their version materially, therefore, their statements do not inspire confidence, as such it is. very hard to believe their statements and their testimony cannot be safely relied upon.
21. 9.Not only the narration of the incident has been changed, a new factor by way of motive has been introduced. No motive has been set up in the F.I.R. but during trial with a view to make the statements to look reliable and trustworthy, a motive has been introduced that 10/15 days prior to the occurrence the appellant set ablaze 'Parali' of Mansha on which Mansha hurled abuses and gave him a slap. The motive apart from being extremely vague and unconvincing cannot be accepted as a feature which would have given rise to the present occurrence. A futile attempt has in fact been made by the prosecution to bring on record a corroborative piece of evidence.
22. 10.Apart from the aforesaid reasons, the prosecution case suffers from other infirmities. It has been brought on the record that during the occurrence one Gulzar received fire-arm injuries. He was also medically examined by Dr. Ashfaq Ahmad P.W.5 who had earlier examined Mansha injured. He attested his M.L.R. as well. According to the M.L.R., Gulzar received fire-arm injuries. The defence version that in fact the fight had ensued in between Gulzar on one hand and Mansha on other hand; Mansha deceased inflicted a fire-arm injury on his person and Gulzar with a view to defend himself fired at the deceased who after receipt of the said injuries expired subsequently.
23. The defence version cannot be accepted as a whole truth but the fact remains that sufficient material has come on the record to indicate that Gulzar had been injured during the incident and he had been cited as a witness by the prosecution in the callendar but was subsequently given up as having been won over. It cannot be said with certainty as to what statement he would have made in the Court but his non-production has left a lacuna in the prosecution case and the benefit in any case has to be extended to the accused. Similarly, Shaukat and Ramzan who even according to the prosecution were engaged in fight with the appellant were neither cited nor examined during trial. The witnesses were apparently opposed to the appellant and there does not appear to be any valid reason for not examining them by the prosecution. Their non-production in Court also makes the prosecution case as doubtful. A valid inference can be drawn that the prosecution did not deliberately bring on record the true facts. The contention raised by the learned counsel that medical evidence is not in consonance with the eye-witness account is not without basis. The injuries have been found to have blackening by the doctor but according to the eye-witneses and the Investigating Officer as well as the site plan exhibited by the prosecution, the distance in between the assailant and the injured was 27-30 feet. No blackening or tatooing can be caused if a shot is fired from that distance. The mere fact that injuries have been caused with fire- arm is not sufficient to lend support to the eye-witness account. Unless the medical evidence is in line with the eye-witness account on all material aspects the same cannot be treated or regarded as supporting evidence. The fire arm injuries have been caused from a very close range which is contradicted by the prosecution witnesses. The prosecution case on this score as well is rendered doubtful and unacceptable. As regards the recovery of weapon of offence, the same is inconsequential because the very recovery of gun in absence of recovery of any empty for being matched with the said gun and the report of Forensic Science Expert in that behalf is of no help to the prosecution.
11. The upshot of the above discussion is that the prosecution has failed to discharge its onus. The prosecution evidence is discrepant on material points. Although the defence version put forward by the appellant can also not be accepted in toto but there is no onus on the accused which he has to discharge. The prosecution has to prove the guilt of the accused person beyond any shadow of doubt which has not been done. Resultantly, the appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charge against him. He shall be released forthwith if not required in any other criminal case.