' SH. ABDUR RAZZAQ, J.--- This unfortunate incident resulting in the death of Khurshid Ahmad on 16- 2-1992 at 8-00 p.m. Occurred in the area of Chak No,197/GB, Nelian Wala, situated at a distance of 13 miles from the Police Station Bhowana Tehsil Chiniot, District Jhang. It was reported by Said Ahmad complainant (P.W.4) to Asadullah Khan S.-I./S.H.O. (P.W.12) who recorded complaint Exh.P.G.
Which was later on reduced into formal F.I.R. Exh.P.G./1.
2. The prosecution case as narrated by Said Ahmad (P.W.4) was that on 16-2-1992 at about 8-00 p.m. He was going towards his Dera from his house. When he reached near the culvert adjoining to his Dera, Nasir accused armed with a rifle, Abid armed with pistol, Ihsan armed with hatchet, Sadiq armed ith .12 bore gun, Nasir and Mumtaz armed with 7 mm rifles emerged there raising Lalkara that they would take the revenge of the murder of Ali Muhammad. Accused Mumtaz fired at him, but it missed, upon which he caught hold of his rifle and raised alarm which attracted Churched Ahmad, Muhammad Ishaq and Noor Hussain who were staying there as guests. Thereupon, Nasir accused fired with his rifle which hit Churched Ahmad on the left side of his chest. Sadiq accused tried to fire at the complainant, but in the meanwhile Muhammad Ishaq P.W. Reached there and caught hold the barrel of his gun so the fire was missed. Abid and Ehsanullah inflicted blows on his person and consequently the barrel of gun slipped from his hand. After the occurrence all accused fled away raising Lalkara, leaving two cycles and One mare. The complainant removed Khurshid Ahmad in injured condition to Faisalabad where he was medically examined and died at 3-30 a.m.
On the same night.
3. The motive behind this occurrence was stated to be that 18/20 years ago Ali Muhammad father of Nasir Ali accused-appellant was murdered by Mumraiz etc. But a compromise had taken place a year before the present occurrence. However, Mumraiz and others gave the impression that Ali Muhammad father of accused-appellant had been murdered at the instance of Huzoor Muhammad, father of the complainant. The accused-appellant nourished grudge on that account and launched this attack with the connivance of his co-accused resulting into death of his brother.
Leaving the dead body under the supervision of Muhammad Ishaq and Noor Muhammad, the complainant made for lodging the report, which was recorded by Asadullah S.-I./S.H.O. (P.W.12) who at the relevant time was posted at Police Post Ghugh Chowk.
4. After the registration of complaint Exh.P.G. He sent the same through Shamsul Hach Constable at the police station for formal registration of F.I.R. And made for Civil Hospital, Faisalabad. He examined dead body, prepared inquest report Exh.P.M. And injury statement Exh.P.N., dispatched the dead body for post-mortem examination through Muhammad Saqib, Constable. He then made for the place of occurrence and collected blood-stained earth vide memo. Exh.P.C. He also collected two cycles P.4 and P.5 vide memo. Exh.P.D. On the same day Muhammad Sadiq, Constable produced last-worn clothes of deceased P.7 to P.9 which he secured vide memo. Exh.P.J.
He also prepared statement of injury of Said Ahmad complainant Exh.P.O. He also got the site plans prepared through Patwari which are Exh.P.K. And Exh.P.K./1. The remaining investigation was also conducted by Ghulam Haider, S.-I. (P.W.14) who was posted in March, 1992 at Police Post Ghugh. On 23-7-1992 he arrested accused, Abid, Sadiq, Mumtaz and Ihsan. On 6-4-1992 Ihsan accused led to the recovery of hatchet P.1 which he secured vide memo. Exh.P.A. On 7-4-1992 Sadiq accused led to the recovery of gun P.2 and 2 Cartridges P.3/1-2 and secured the same vide memo. Exh.P.B. On 15- 4-1992 he arrested accused Nasir Ali who on 24-4-1992 led to the recovery of -m rifle P.6 which was secured vide memo. Exh.P.E. He secured copies of dated 18-2-1992 and Rapt No,21, dated 15-2-1992 Exh.P.M. And Exh.P.N. Respectively. After completing the investigation he got the accused challenged.
5. A charge under section 302/148/149, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
6. In the instant case prosecution examined as many as 14 P.Ws. Out of whom Zahoor Ahmad P.W.1 is a witness of identification of dead body of Khurshid Ahmad deceased whereas Shaukat Hayat P.W.2 is the witness of recovery of hatchet P.1 at the instance of accused Ihsan which was secured vide memo. Exh.P.A., dated 6-4-1992. He also witnessed memo. Exh.P.B. Pertaining to the recovery of .12 bore gun P.2 and cartridges P.3/1-2 at the instance of Sadiq accused on 7-4-1992. Nawazish Ali P.W.3 is the witness of recovery of blood-stained earth which was secured on 17-2-1992 vide memo.
Exh.P.C. He also attested memo. Of recovery Exh.P.D. Pertaining to cycles P.4 and P.S. He also attested memo. Exh.P.E. Whereby rifle P.6 recovered at the instance of Nasir Ali accused was secured. Said Ahmad P.W.4 is the complainant of this case on whose statement complaint Exh.P.J.
Was recorded on the basis of which F.I.R. Exh.P.G./1 was reduced into writing. Muhammad Ishaq P.
W.5 is an eye-witness of this occurrence who corroborated the version of Said Ahmad (P.W.4). Dr. Masud Iqbal Bukhari P.W.6 examined Khurshid Ahmad injured on 16-2-1992 at 11-30 p.m. And issued M.L.R. Exh.P.H. He found only one fire-arm injury on the person of injured. He admitted that injured was brought to the hospital by Huzoor Muhammad, his father. Ahmad Sher, Constable P.W.7 recorded formal F.I.R. Exh.P.G./1 on the basis of complaint Exh.P.G. On 17-2-1992. Mumtaz Hussain, Moharrir/H.C., P.W.8 was given case property and sealed parcel containing blood-stained earth on 17-2-1992. He delivered the same to Muhammad Saqib, Constable on 1-4-1992 for onward transmission to the office of Chemical Examiner. P.W.9 Muhammad Saqib, Constable escorted the dead body on 17-2-1992 for post-mortem examination. After the post-mortem examination he was given last-worn clothes of the deceased P.7 to P.9 which he handed over to the Investigating Officer, who secured it vide memo. Exh.P.J. On 1-4-1992 he was handed over parcel consisting of blood-stained earth by Mumtaz Hussain (P.W.8) for onward transmission to the office of Chemical Examiner. Ahmad Khan P.W.10 visited the place of occurrence, prepared site plans Exh.P.K. And Exh.P.K./1 and handed over the same to the Investigating Officer. Muhammad Abbas, Constable P.W.11 is a formal witness as he brought record pertaining to Nasir Ali, Constable, regarding his leave. Asad Ullah, S.-I. P.W.12 is the Investigating Officer whose evidence has already been discussed above. Dr. Ejaz Haider P.W.13 conducted post-mortem examination of dead body of Khurshid Ahmad on 17-2-1992 at 2-10 p.m. He found the following injuries on his person:--
(1) A rounded wound of 1 c.m. Diameter x abdominal cavity deep on the upper margin of right abdomen. The margins were inverted and blackened. The wound was about 11 c.m. Below the right nipple but towards inner side. This was the wound of entry caused by fire-arm weapon.
' There was another lacerated oval shaped wound 3 c.m. x 2 c.m. On the right side of the upper abdomen. The margins were lacerated and averted. It was about 24 c.m. From the right nipple in an oblique manner towards outer side. This was corresponding wound of exit caused by the fire- arm weapon.
' In his opinion the cause of death was hemorrhage, shock and injuries to the vital organs caused by fire-arm. Both the wounds of entry and exit were ante-mortem, grievous in nature and caused by fire-arm and were sufficient to cause death in the ordinary course of nature. He gave the probable time between injuries and death about 8 to 10 hours and between death and post- mortem about 8 to 12 hours. He issued post-mortem examination report Exh.P.Q. And sketch of injuries Exh.P.Q./1. He also signed injury statement Exh.P.N. And inquest report Exh.P.M. On the same day he also examined Said Ahmad, complainant and found the following injuries on his person:--
(1) An incised wound 2 c.m. x 1 c.m. x skin deep on the left wrist joint on its outer aspect.
(2) An incised wound 1-1/2 c.m. x 1 c.m. x skin deep on the front of the left wrist joint.
(3) An incised wound 1/2 c.m. x 1/2 c.m. On the left ring finger near the bed of the nail.
(4) An abrasion 1 c.m. x 1/2 c.m. On the front of the right knee joint in its lower half.
(5) A swelling 2-1/2 c.m. x 1-1/2 c.m. On the outer half of the right eyebrow.
' He issued M.L.R. Exh.P.R. And sketch Exh.P.R./1. He deposed that all the injuries were simple in nature and injuries Nos.1 to 3 were caused by a sharp-edged weapon and rest by blunt-edged weapon.
P.W.14 Ghulam Haider, S.-I. Conducted partial investigation of case whose evidence has already been discussed above. Learned D.D.A. Produced Report of Chemical Examiner and that of Serologist and thereby closed prosecution case vide his statement, dated 6-7-1993.
7. When examined under section 342, Cr.P.C. Accused Abid Hussain, Sadiq, Ihsan and Mumtaz admitted that accused are related inter se but denied other contentions of the prosecution. The accused Sadiq and Ihsan also denied the recovery of gun and hatchet respectively. The accused Mumtaz produced documents Exh.D.C. And Exh.D.D. In support of his contention. Similarly accused Nasir Ali denied the prosecution version including the recovery of 7 mm rifle. He also produced a discharge certificate from hospital Exh.D.E. None of the accused examined himself under section 340(2), Cr.P.C.
8. After going through the evidence produced by the parties, the trial Court convicted Nasir Ali accused-appellant and sentenced him to death and fine of Rs,50,000 to be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased. He acquitted the remaining accused Abid, Sadiq, Ihsan and Mumtaz. The accused-appellant Nasir Ali has filed Criminal Appeal No,699 of 1993 whereas the learned Court has also forwarded a Murder Reference as required under section 374, Cr.P.C. The complainant has also filed Criminal Revision No,530 of 1993 against the acquitted above named accused.
9. This judgment shall dispose of Murder Reference No,299 of 1993, Criminal Appeal No,699 of 1993 as well as Criminal Revision No,530 of 1993 arising out of judgment, dated 26-10-1993 passed by Rao Hamid Mukhtar Khan, Additional Sessions Judge, Chiniot whereby he convicted appellant Nasir Ali son of Ahmad Ali accused-appellant to death and fine of Rs,50,000 or in default thereof to undergo further period of 3 years' R.I. He, however, acquitted Abid Hussain, Sadiq, Ihs'an sons of Varyam and Mumtaz son of Allah Bux.
10. We have heard the learned counsel for the parties and have gone through the record with their assistance.
10-A. Contention of the learned counsel for the appellant is that as many as 5 persons were involved in the instant case out of whom 4 have been acquitted whereas appellant has been convicted on the basis of same evidence upon which his four co-accused have been acquitted, that this fact alone shows that trial Court has not believed their evidence to the extent of acquitted accused which fact makes the prosecution case doubtful, that witnesses are inimical towards accused and their statements lack any independent corroboration, that as per statement of Said Ahmad complainant (P.W.4) the deceased was fired at in standing position, that his statement stands belied by the evidence of P.W.13 Dr. Ijaz who issued post-mortem examination report Exh.P.Q.
Which shows that the said injury had been inflicted on the person of deceased when he was either sleeping or the assailant was standing at upper level from the deceased, that complainant P.W.4 states that he had removed the dead body of Khurshid Ahmad to Civil Hospital whereas M.L.R.
Exh.P.H. Reveals that he was brought by his father Huzoor Muhammad, that had the complainant been present at the spot, he would have removed the injured since deceased to Civil Hospital for his medical examination, that occurrence admittedly took place during night hours, as such the identification of the accused including the appellant is also not free from doubt. He further submitted that even the motive pertains to an occurrence which took place 18/20 years ago, as such it does not afford any immediate cause of grievance to the appellant for committing this offence. He, thus, submitted that prosecution has failed to connect the accused-appellant with the commission of this offence beyond any reasonable doubt and trial Court was not justified in passing the order of conviction against him.
11. Conversely the impugned judgment has been supported by the learned counsel for the State as well as learned counsel for the complainant. Learned counsel for the complainant has submitted that on the basis of evidence brought on record prosecution has succeeded in establishing case against the acquitted accused, as such they be also convicted in accordance with law.
12. Now let's analyse the prosecution version and see if prosecution has been able to prove its case against the accused-appellant or not. According to first version of the complainant contained in complaint Exh.P.G. The deceased was fired at by Nasir Ali in standing position. This contention of the complainant stands belied from the post-mortem examination report Exh.P.Q. And diagram Exh.P.Q./1 which have come on record through the statement of Dr. Ijar(P.W.13). The sketch of injury Exh.P.Q./1 shows that the said injury could not be caused to the deceased if he had been attacked while in standing position. It appears that either the deceased was sleeping at that time or the assailant was standing at higher level than that of deceased. Again prosecution has brought on record that 7 mm rifle P.6 was recovered at the instance of accused-appellant on 24-4-1992 which was secured vide memo. Exh.P.E. Admittedly this rifle was never sent to the Chemical Examiner as no empties of 7 mm rifle were recovered from the place. Thus, even evidence of recovery of 7 mm rifle from accused-appellant in no way connects him with the commission of this offence. Again as per statement of complainant-Said Ahmad (P.W.4) he removed the injured Khurshid Ahmad to Civil Hospital after the occurrence where he got him admitted. This factum of removing the injured Churched Ahmad to Hospital by Said Ahmad-complainant is also not borne out from the record.
The injured Churched Ahmad was examined by Dr. Masud Iqbal Bukhari P.W.6 on 16-2-1992 vide M.L.R. Exh.P.H. He has admitted that the injured was brought in hospital by Huzoor Muhammad father of the injured. Thus, even the presence of the complainant at the relevant time is not free from doubt. It is also fact that complainant Said Ahmad and Muhammad Ishaq are related to Churched Ahmad deceased, as such their independent corroboration was necessary which is lacking in the instant case. The evidence of recovery of rifle at the instance of accused-appellant in no way gives support to the prosecution version as there is nothing on the record to prove that the said weapon had been used in the commission of this offence.
13. In the light of facts stated above, it is clear that prosecution has failed to prove its case beyond reasonable doubt. Accordingly, we accept the appeal and acquit the accused-appellant. The death sentence is not confirmed and Murder Reference is answered accordingly. With the acceptance of appeal, the Criminal Revision has become infructuous and is disposed of accordingly.