By his judgment, dated 15-10-1991 learned Additional Sessions Judge, Sheikhupura convicted Sarnawaz appellant (27/28) under section 302, P.P.C. for having murdered Riasat Ali (24/25) deceased and sentenced him to life imprisonment with a fine of Rs,5,000 or in default of the payment of the said fine to undergo further rigorous imprisonment for three months. He was also directed to pay Rs, 10,000 to the legal heirs of Riasat Ali deceased by way of compensation or in default to undergo six months rigorous imprisonment.
2. The occurrence took place on 12-11-1988 at 1 p.m. in a field situated in village Jatugala, District Sheikhupura which was at a distance of 1-1/2 miles from Police Station Narang Mandi.
3.F.I.R. Exh.P.A. was recorded at Police Station Narang Mandi on the same day at 2 p.m. on the statement of Said Muhammad P.W.1 the father of the deceased.
4.The prosecution case as narrated in the F.I.R. is that on 12-11-1988 at about 11 a.m. Said Muhammad complainant, his sons Riasat Ali deceased and Muhammad Arif alongwith Muhammad Javaid (both not examined) were reaping the paddy crop in their field. Another son of the complainant namely Waris P.W.2 was grazing his buffaloes at a distance of about one 'Killa' from them. Sarnawaz alias Sarru appellant came there and started abusing and slapping Waris aforesaid. He asked Waris as to why he was grazing his buffaloes in the area which he had kept for his own cattle. Riasat Ali deceased went towards them to rescue his brother. He had an altercation with the appellant. The latter abused him and ran towards his 'Dera' threatening that he would teach him a lesson. He came back armed with a 12 bore single barrel gun. When the complainant saw him coming with a gun, he, his son Muhammad Arif, Muhammad Javaid alongwith Muhammad Shafi (given up as having been won over) ran towards Riasat Ali deceased. When they reached near him they saw Sarnawaz appellant firing at the deceased from a distance of 2/3 karams. The deceased received a fire-arm injury in the front of his abdomen udder umbilicus and fell down. The complainant fell upon his injured son (to save him from further injuries) who died at the spot. The companions of the complainant tried to apprehend the appellant but he ran away firing in the air.
5.After recording the F.I.R. Inspector Liaquat Ali P.W.12, who was serving as S.H.O., Police Station Narang Mandi, proceeded to the place of occurrence and on reaching there prepared a rough site plan Exh.P.L. and gave his notes thereon. He then prepared the inquest report Exh.P.H. and injury statement of the deceased Exh.PJ. During the spot inspection he took into possession two empty cartridges Exh.P.1/1-2 vide memo. Exh.P.B. He then took into possession blood-stained earth from the place of occurrence and sealed it into a parcel vide memo. Exh.P.C. He despatched the dead body to Sheikhupura for post-mortem examination. On the following day i,e,, on 13-11-1998 he took into possession last worn blood-stained clothes of the deceased shirt P.2 and under-wear P.3 vide memo. Exh.P.D. He recorded the statements of the witnesses and then on 26-11-1988 arrested Sarnawaz appellant. 'At that time gun Exh.P.4 was recovered from his possession alongwith two live cartridges Exh.P.5/1-2 which were taken into possession vide memo. Exh.P.E. Exh.P.L/1 is the site plan showing the location of the place of recovery. He then got the site plans of the place of occurrence Exhs.P.F and P.F/1 prepared through Muhammad Latif Patwari P.W.10 and gave his notes in red ink on them. After the completion of the investigation he challaned the appellant.
6. On 13-11-1988 at 10-30 a.m. Dr. Sikandar Manzoor, Medical Officer of District Headquarter Hospital, Sheikhupura conducted post-mortem examination on the dead body of Riasat Ali deceased aged about 24/25 years. Dr. Sikandar Manzoor had proceeded abroad, and therefore, could not be served. As there was no likelihood of his coming back in the near future, Dr. Mobasher Ahmad S.M.O.
District Head Quarter Hospital, Sheikhupura, who had worked with Dr. Sikandar Manzoor and was conversant with his handwriting and signatures, was examined as P.W.13. He proved post-mortem examination report Exh.P.G. and the diagram showing the location of injuries Exh.P.G./l.
7. According to the post-mortem examination report the dead body was that of a young man of average built wearing a 'Qameez' and under-wear. His eyes were closed. Mouth was semi-open.
Rigor mortise and post-mortem staining were present. No ligature mark was found around the neck.
8. The Medical Officer found the following injuries on the dead body:--- (1)6 fire-arm wounds of entry with blackening and burning of edges, five each measuring 1 c.m. x 1 c.m., sixth measuring 2.5 c.m. x 2.5 c.m. in area 5 c.m. x 5 c.m. of front of abdomen 3.5 c.m. below umbilicus.just to the left of midline, making five wounds of exit measuring 1.25 c.m. x 1.25 c.m. on the left buttock upper part in area 4 c.m. x 2.5 c.m. and 5 c.m. from natal left.
(2)An ulcer 3 c.m. x 1 c.m. muscle deep on the lower margin of left buttock with pus discharge.
' In the opinion of the doctor injury No,1 had been caused with a fire-arm and was ante-mortem, while injury No,2 was a discharging boil. Time between injury and death was 15 to 30 minutes while time between death and post-mortem' examination was 24 hours. The Medical Officer opined that the cause of death was due to cardio respiratory failure due to severe haemorrhage and shock.
Injury No,1 was individually sufficient to cause death of a person in ordinary course of nature.
9. The accused was formally charged under section 302, P.P.C. He pleaded not guilty and claimed trial.
10. The prosecution examined 12 witnesses in support of its case including the two eye-witnesses namely Said Muhammad P.W.1 and Muhammad Waris P.W.2.
11. In his statement under section 342, Cr.P.C. Sarnawaz accused denied the allegations levelled against him and maintained that he has not caused the death of Riasat Ali deceased. He maintained that it was a blind murder and he had been falsely implicated due to enmity. He asserted that the gun P.4 belonged to his brother Haq Nawaz who had a licence, that the gun was produced before the police by his said brother and that the police had fabricated an empty by firing through the said gun and then replacing it with crime empty received from the spot.
He examined Haq Nawaz abovementioned as P .W .1 who supported him. He declined to make a statement on oath under section 340(2), Cr.P.C.
12. After the conclusion of the trial the learned Trial Court convicted and sentenced the appellant as stated above. Feeling aggrieved he has come up in appeal (Criminal Appeal No,1185 of 1991) while Said Muhammad complainant has lodged a revision (Cr. Revision No,36 of 1992) for the enhancement of the sentence of the appellant from life imprisonment to death. Since both these matters arise out of the same judgment I propose to dispose them of by this judgment.
13. I have heard the parties' learned counsel and have also gone through the record with their assistance.
14. The case of the prosecution rests on:-- (1)Evidence about motive, (2)Evidence about recovery of crime empties P.1/1-2 and 12 bore gun Exh.P.4.
(3)Ocular account consisting of the statements of Said Ahmad P.W.1 and Muhammad Waris P.W.2, and (4)Medical evidence.
15. Learned Trial Court has disbelieved the prosecution evidence on motive and recoveries and solely relying on the ocular evidence has recorded the conviction of the appellant.
16. First of all it will be examined if the learned Trial Court was justified in disbelieving the prosecution evidence on motive and recoveries. In the F.I.R. the case of the prosecution is that Waris P.W. was grazing his cattle in the land belonging to Muhammad Malik father of the appellant to which the appellant strongly objected and to express his anger, he abused and slapped him.
Riasat deceased went towards them in order to rescue his brother Waris. On reaching there the deceased and the appellant had an altercation whereafter the latter abused the former and went to his house extending threats that he would be taught a lesson. He came back with a gun and fired at the deceased. In their statements before the learned Trial Court Said Ahmad and Waris P.Ws. have not mentioned any altercation between the appellant and the deceased. The learned Trial Court has very rightly observed that when the appellant had adequately punished Waris and P.W. for the trespass which he had committed, it seemed highly improbable and untrue that the appellant had gone to his house to bring a gun to kill Riasat deceased who had not caused any annoyance to him. The learned Trial Court held that true facts and been suppressed and the prosecution had failed to prove motive as narrated in the F.I.R. It is interesting to note that, during the trial the prosecution introduced a new story about motive. P.W. 1 Said Ahmad stated chat about 5 to 7 days prior to the occurrence the son of the sister of Sarnawaz appellant and his son Waris had an altercation in the school and that on the same day Sarnawaz had extended threats to them and asked as to why they (the complainant party) thought that his nephew had nobody to protect him. Admittedly the witnesses in their previous statements had not made any mention of any such incident. It, is thus, an afterthought. In my opinion introduction of a new motive during the trial also reflects upon the absurdity of prosecution's original story about motive. In these circumstances, agreeing with the learned Trial Court, I also hold that the prosecution had failed to prove motive against the appellant.
17. As regards recoveries, the prosecution case is that two crime empties Exh.P1/1-2 were recovered from a distance of 2/3 karams from the dead body of the deceased. According to the prosecution the appellant had fired only one shot at the deceased which had hit him. Learned Trial Court was of the view that when the appellant had fired a single shot at the spot, the recovery of two empties from there was not understandable and that it indicated that the said empties had been planted.
Learned counsel for the complainant has tried to explain the second empty by maintaining that it was the result of the firing which the appellant had resorted to after he was running away from the place of occurrence. This explanation is neither plausible nor acceptable. In their statements before the learned Trial Court the eye-witnesses have not made any mention of any firing which the appellant made while running away. Even otherwise the crime empty falling out of the gun of the appellant, when he was running away, would not have fallen along side the empty which had fallen out of the gun as a result of the fatal shot. The recovery of these empties is further rendered doubtful by the inquest report. According to the prosecution, as is revealed from the site plan Exhs.PF and PF/1, the crime empties were lying at a distance of two karams from the dead body but in column No,23 of the inquest report no such recovery has been mentioned. So far as the recovery of the gun P.4 is concerned, the prosecution has introduced another unnatural and improbable story. The occurrence took place on 12-11-1988. There is ample material on record i,e,, statement of Haq Nawaz D.W.1 and the photostat copy of licence Exh.DD which shows that gun P.4 belonged to Haq Nawaz aforesaid the brother of the appellant. According to the prosecution case on 26-11-1988 i,e,, about 14 days after the occurrence. S.H.O. Liaqat Ali P.W.12, who was investigating the case, received information about the presence of the appellant at the dera of his father Muhammad Malik whereupon he alongwith the police party raided the said dera and found the appellant standing there with gun P.4 in his right hand which was taken into possession and sealed into a parcel vide memo. Exh.P.E. It does not appeal to reason as to why the appellant had been keeping the licensed gun of his brother for 14 days after the occurrence and for what purpose he was carrying it on the 14th day in the Sera of his father. There is absolutely no evidence on record to show as to why the, appellant had not been arrested earlier nor there is any material to show that the Investigating Officer had made any effort to arrest him earlier. It is not alleged that he had ever absconded. He was not hiding anywhere. All these circumstances indicate that the story of the arrest of the appellant on 26-11-1988 was unnatural and improbable. These circumstances also lend strength to the assertion of the appellant which finds due support from the statement of his brother Haq Nawaz D.W. 1 that he had been arrested on the very day of occurrence and that the crime empties had been manufactured on that very day from the licensed gun of Haq Nawaz aforesaid. Since these recoveries are shrouded in serious doubts, I agreeing with the learned Trial Court am not pursuaded to rely on the prosecution evidence with this regard.
18. Now it is to be seen if in the absence of motive and recoveries the conviction of the appellant could be based on mere ocular evidence. It is an admitted fact that Said Ahmad P.W. the father of the deceased and Muhammad Malik father of the appellant are real brothers. It is revealed from the statements of Said Ahmad aforesaid, Haq Nawaz D.W. 1 and Sarnawaz appellant under section 342, Cr.P.C. that they owned joint agricultural land and there was a dispute between the two brothers over its partition. Said Ahmad P.W. has admitted in his statement before the learned Trial Court that there was a dispute between him and his brother Muhammad Malik over the partition of the joint agricultural land as a result of which relations between the two families were not good. In this background when the ocular evidence is examined it is found that it consists of the testimony of closely related and interested witnesses who had strained relations with the appellant and his family. It has already been pointed out that Said Ahmad P.W. is the father and Muhammad Waris P.W. is the brother of Riasat deceased. As such it is not safe to place any reliance on their testimony without independent corroboration. Since the prosecution evidence with regard to motive and recoveries has been disbelieved I am of the view that the ocular evidence does not get any independent corroboration in the present case. Even otherwise the ocular evidence is improbable, discrepant, and contradictory and does not inspire confidence. The veracity of the eye-witnesses with regard to their deposition about motive has already been discussed. Circumstances appearing on record strongly indicate that Said Ahmad and Muhammad Waris P.Ws. had not witnessed the occurrence or atleast their presence at the place of occurrence was highly doubtful.
According to the prosecution the witnesses were present near the place of occurrence because they were reaping the paddy crop. P.W.10 Muhammad Latif Patwari, who had prepared the site plans Exhs.PF and PF/1, has stated that he had visited. the place of occurrence on 1-11-1988 i,e,, on the following day of occurrence and that at that time there was no standing paddy crop which had already been reaped. This belies the prosecution story about the presence of the eye-witnesses, near the place of occurrence for the purpose of reaping the paddy crop. It is in the prosecution evidence that Riasat deceased was bare-footed. Had he been reaping paddy crop, he would not have been without shoes, for, it was highly inconvenient and difficult to reap paddy crop with bare feet because of the hard stubs of paddy. Then, it was the case of the prosecution which was duly agitated during the investigation that when the deceased had fallen down after receiving gun shot injury on his abdomen, Said Ahmad P.W. had fallen over him to save him from further inury. During the trial the eye-witnesses tried to materially deviate from their said stand because had Said Ahmad P.W. thrown himself on the injured body of his son, his clothes must have received blood- stains but since they were not so stained with blood, the witnesses made deliberate effort to improve their statement by saying that Said Ahmad P.W. had fallen not on the body of the deceased but near him. For what purpose Said Ahmad P.W. had to do this exercise, noiody knows.
This, however, is indicative of the fact that the eye-witnesses were not present at the time and place of occurrence and that they are not trust worthy witnesses. The rough site plan Exh.PL prepared by the S.H.O./Investigating Officer and the site plans Exhs.PF and PF/1 prepared by P.W.10 Muhammad Latif Patwari do not contain the names of the eye-witnesses which according to the learned counsel for the appellant is another circumstance-showing that the presence of the eye- witnesses was highly doubtful.
19.Now I come to a very important aspect of this case. It is the prosecution case in the F.I.R. and it is shown in the site plans Exhs.PF and PF/1 that the deceased had been fired at from a distance of 2/3 karams i,e,, from 11 to 16-1/2 feet. The post-mortem examination report shows that the firearm entry wound on the dead-body of the deceased had blackening and burring on its edges. Dr. Mobasher Ahmad P.W.13 has opined that in the present case the firing distance could not be more than three feet. The post-mortem examination report further reveals that three pieces of wads had also been recovered from the wound of the deceased. This also shows that he had been shot at from a very close range. The medical evidence, therefore, in the present case is in conflict with the ocular evidence. This conflict strongly indicates that the presence of the eye-witnesses at the time and place of occurrence was highly doubtful.
20.In view of the above discussion, I am of the opinion that, in the present case, the conviction of the appellant could not be based on the ocular testimony of related, interested and antagonistic witnesses especially when the same was in conflict with the medical evidence and there was no independent corroboration of it. I, therefore, hold that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. Consequently, I allow that appeal and acquit him. He stall be released forthwith if not required in any other case. The revision petition instituted by the complainant stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.