' Pasand Shah son of Farzand Shah, aged 32 years, was convicted by the learned Sessions Judge, Mandi Bahauddin for an offence under section 302, P.P.C. Vide judgment dated 22-3-1995 and was sentenced to imprisonment for life. He was also directed to pay compensation of Rs,20,000 to the heirs of Ghulam Murtaza Shah deceased or in default of payment thereof to suffer six mouths S.I.
The benefit under section 382-B, Cr.P.C. Was also extended to him. Through the same judgment the learned trial Court had acquitted Farzand Shah and Noor Shah co-accused of Passand Shah.
Pasand Shah convict has challenged his conviction and sentence before this Court through the present appeal. Against the acquittal of Farzand Shah and Noor Shah Mumtaz Hussain Shah complainant had filed PSLA No,22/95 before this Court but the same had been dismissed as withdrawn by this Court on 22-11-1995.
2. According to the prosecution story narrated in the F.I.R. Mumtaz Hussain Shah complainant had got his son Ghulam Murtaza Shah engaged to Mst. Shaista Perveen daughter of Mahlay Shah of village Rukan. On 6-2-1993 Mumtaz Hussain Shah complainant and his son Ghulam Murtaza Shah had gone from their Chak Saida to village Rukan. At about 4.00 p.m. On that day when they were passing through a street near the Dera of Ch. Ghulam Abbas Numberdar suddenly Farzand Shah and his sons Noor Shah and Pasand Shah emerged there. Farzand Shah and Noor Shah were stated to be empty-handed whereas Pasand Shah was allegedly armed with a 7.MM rifle. Farzand Shah and Noor Shah then raised a Lalkara that Ghulam Murtaza Shah should not be spared. Upon that Pasand Shah fired a shot from his rifle which hit Ghulam Murtaza Shah just above his haunch and he fell down. After that Ghulam Murtaza Shah, while in an injured condition, was taken to Civil Hospital, Mandi Bahauddin where the Doctor referred him to Civil Hospital, Gujrat. After sending his son Ghulam Murtaza Shah to Civil Hospital, Gujrat Mumtaz Hussain Shah complainant went to Police Post, Gojra and made a statement (Exh.PJ) in respect of that incident before Abdul Ghafoor S.I. (P.W.16) at about 11.15 p.m. That night. A formal F.I.R. No,34 (Exh.PJ/1) was recorded at Police Station Malakwal, District Mandi Bahauddin by Imdad Hussain Shah M.H.C. (P.W.12) at 12.25 a.m. On 7-2-1993 in that regard. The motive stated in the F.I.R. Was that Farzand Shah etc. We're not happy over the engagement of the complainant's son to Mst. Shaista Perveen and they used to forbid Mahlay Shah from agreeing to that marriage proposal. It was further alleged in the F.I.R. That Pasand Shah accused had declared that he would not allow his sister-in-law to get married to Ghulam Murtaza Shah. It was stated in the F.I.R. That this occurrence had also been witnessed by Ch. Ghulam Abbas Numberdar and Sher Muhammad besides the complainant himself.
3. After recording the statement of the complainant at Police Post, Gujrat Abdul Ghafoor, S.I. (P.W.16) took the investigation of this case in his hands and proceeded to Gujrat to record the statement of Ghulam Murtaza Shah at Civil Hospital, Gujrat. He submitted an application to the Medical Officer in the respect but the latter informed him that Ghulam Murtaza Shah was not fit for making any statement. The Investigating Officer then went to the place of occurrence and prepared a rough site-plan (Exh.PN) of the place of occurrence, recorded the statements of Ghulam Abbas and Sher Muhammad P.Ws obtained Medico-Legal report (Exh.PC) in respect of Ghulam Murtaza Shah which was produced before him by Ghulam Rasool ASI and took into possession the last-worn clothes of Ghulam Murtaza Shah vide memo Exh.PA. On 11-2-1993 he recorded the statement of Ghulam Murtaza Shah while he was admitted to the hospital. Ghulam Murtaza Shah died on 14-2-1993 at Civil Hospital, Gujrat and the F.I.R. Was accordingly amended by substituting section 302, P.P.C. For section 324, P.P.C. The Investigating Officer then prepared inquest report (Exh.PP) fn respect of Ghulam Murtaza Shah deceased. He sent the dead body for autopsy which was conducted on 15- 2-1993. On 23-2-1993 he arrested Pasand Shah accused when he was armed with a 7.MM rifle which was recovered from him and taken into possession vide memo Exh.PB. On 3-3-1993 he recorded the statement of Mahlay Shah and then on 30-4-1993 he got a formal site-plan of the place of occurrence (Exh/PH) prepared through a Draftsman. He then finalized the investigation and challaned Pasand Shah accused. According to his investigation Farzand Shah and Noor Shah accused were completely innocent in this case, and therefore, they had been got discharged from this case.
4. Ghulam Murtaza Shah, while in an injured condition, was medically examined by Dr. Shafiq Ahmad (P.W.4) at 5.30 p.m. On 6-2-1993. The Doctor found two injuries on his person having been caused by a firearm within a duration of between 2 to 6 hours. Both the injuries were kept under observation by the Doctor. The Medico-Legal Report prepared by the said Doctor is Exh.PC. After the death of Ghulam Murtaza Shah on 14-2-1993 post-mortem examination on his dead-body was conducted by Dr. Muhammad Akram Naeem (P.W.5) at 11.00 a.m. On 15-2-1993. Two injuries caused by a firearm were found on the dead-body. Both the injuries were found by the Doctor to be fatal and sufficient to cause death in the ordinary course of nature. In the opinion of the Doctor the time elapsing between the injuries and death was about eight days and that between the death and post-mortem examination was about 10 to 16 hours.
5. After Farzand Shah and Noor Shah were discharged from this case on account of the opinion of the police regarding their innocence Mumtaz Hussain Shah complainant instituted a private complaint in respect of the murder of his son Ghulam Murtaza Shah wherein all the three accused persons were implicated by him. After recording the preliminary evidence in that complaint case the learned trial Court has pleased to summon all the three accused persons therein to face a trial.
However, I have been informed today that the learned trial Court had been requested by all the parties concerned to decide the challan case first.
6. At the commencement of the trial the learned trial Court had framed a charge against all the three accused persons on 5-5-1994 for an offence under section 302, P.P.C. To which they pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as 16 witnesses in support of its case against the accused persons. The ocular account was furnished by Mumtaz Hussain Shah (P.W.8), Ch. Ghulam Abbas Numberdar (P.W.9) and Sher Muhammad (P.W.15). The motive set up by the prosecution was stated by Mumtaz Hussain Shah complainant and Mahlay Shah (P.W.14). Sikandar Hayat (P.W.3) deposed about the recovery of 7.MM rifle from Pasand Shah accused. The medical evidence was provided in this case by Dr. Shafiq Ahmad (P.W.4) and Dr. Muhammad Akram Naeem (P.W.5). Abdul Ghafoor S.I. (P.W.16) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. All the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence either.
9. At the conclusion of the trial, as observed above, the learned Sessions Judge, Mandi Bahauddin, vide judgment dated 22-3-1995, acquitted Farzand Shah and Noor Shah accused whereas Pasand Shah accused was convicted for an offence under section 302, P.P.C. And was sentenced as detailed above. Hence, the present appeal before this Court.
10. I have heard the learned counsel for the appellant as well as the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance.
11. It has been argued by the learned counsel for the appellant that all the eye-witnesses produced by the prosecution were chance witnesses who had failed to prove the reasons for their presence at the place of occurrence at the relevant time. He has also argued that these very eye-witnesses had been disbelieved to the extent of two co-accused of the appellant. He had further argued that the motive set up by the prosecution against the appellant had not been satisfactorily proved and that the recovery of a licensed rifle from the appellant had also failed to furnish any corroboration to the said eye-witnesses. He has also maintained that the medical evidence in this case could not establish the cause of death of the deceased. He has, thus, vehemently canvassed for acquittal of the appellant as the prosecution had failed to prove its case against the appellant beyond reasonable doubt. As against that the learned counsel for the State and the complainant have argued that all the three eye-witnesses produced by the prosecution had absolutely no reason to falsely implicate the appellant in this case and that althoUgh Mumtaz Hussain Shah complainant (P.W.8) was the father of the deceased yet Ghulam Abbas (P.W.9) and Sher Muhammad (P.W.5) were absolutely independent and disinterested witnesses. They have maintained that Ghulam Abbas (P.W.9) was also a natural witness as the occurrence in question took place near his house.
They have further argued that the appellant had a strong motive to commit this offence and the motive in this case has been proved by none other than the appellant's own father-in-law Mahlay Shah (P.W.14). It is maintained by them that it was a day-light occurrence and the F.I.R. In this case had been lodged without any unnecessary delay and during the investigation also the appellant had been found to be the real assailant. They have further highlighted that the suggestions made to the eye-witnesses by the defence admitted the presence and participation of the appellant in the offence perpetrated by him and, therefore, it did not lie in his mouth to turn around and deny his culpability in this case.
12. After hearing the learned counsel for the parties and going through the record I have found the alleged presence of all the three eye-witnesses produced by the prosecution to be highly doubtful.
Mumtaz Hussain Shah complainant (P.W.8) is the father of Ghulam Murtaza Shah deceased. He was admittedly a chance witness who ordinarily lived in Chak Saida which was situated 8/9 miles away from the place of occurrence. He had advanced no reason in the F.I.R. Or in his examination- in-chief before the learned trial Court, or even in the private complaint filed by him, for going to village Rukan in the company of his son Ghulam Murtaza Shah deceased. In his cross-examination before the learned trial Court he had only mentioned that his deceased son had gone to village Rukan to see his maternal aunt. Ghulam Abbas (P.W.9) had, however, stated that the complainant and the deceased had come to village Rukan to inquire about his health. Even this reason was not stated by him in his statement made before the police under section 161, Cr.P.C. Thus, it is evident that initially there was no reason available on the record for the visit of the complainant to the village of occurrence and the subsequently stated reason was contradictory. It is also noticeable that there was no other circumstance available on the record to support the complainant's claim of his presence near the deceased at the time of occurrence. He had claimed to have clasped his deceased son soon after the latter had received his firearm injury but surprisingly his clothes never got stained with his son's blood. It is also noticeable that he claimed to have taken his injured son to the hospital at Mandi Bahauddin yet the Medico-Legal Report in respect of his son does not show the complainant's presence with his son at that time. The complainant had categorically denied that Ghulam Rasool A.S.I. Had in fact taken Ghulam Murtaza Shah to the hospital but the Medico-Legal Repots expressly records that the injured had been brought to the hospital by Ghulam Rasool A.S.I. The said Ghulam Rasool A.S.I. Had also entered the witness-box as P.W.2.
Therefore, in the absence of any plausible reason being available for the presence of the complainant near the deceased at the time of occurrence and also in the absence of any independent circumstance confirming the complainant's claim in that respect this Court is reluctant to accept his statement as an eye-witness of the occurrence.
13. As regards Ghulam Abbas (P.W.9) it is claimed by the prosecution that he was an independent as well as a natural witness of the occurrence. It was maintained that he was not related to the complainant and that he not only lived near the place of occurrence but the deceased had also been taken to his Dera and made to lie at a cot therein in an injured condition. I have carefully analysed the prosecution's evidence to see whether both these claims. Regarding his being independent and natural witness are reliable or not. It is an admitted position that this witness was married in Chak Saida, the village of the complainant party. It could not, therefore, be said that he had absolutely no ties with the residents of Chak Saida. His claim of being a natural witness stems from the assertion that the occurrence in question had taken place in the street beside his Dera.
This argument over-looks the fact that the prosecution has failed to prove the place of occurrence in this case. Admittedly, no blood-stained earth was taken from the stated place of occurrence in that street so as to enable this witness to be termed as a natural witness. It has also come on the record that the occurrence in question had in fact taken place in front of the house of one Nazir Nai (hair-dresser) and not in front of the house of Ghulam Abbas (P.W.9). All the eye-witnesses in this case had claimed that the blood of the deceased had not fallen on the ground although it was admitted that the deceased had fallen on the ground after receipt of his injury. The complainant (P.
W .8) had termed the injury sustained by the deceased to be a "big wound" and the last-worn clothes of the deceased were such that they were insufficient to stop the blood from falling on the ground. In this view of the matter a claim that this witness was a nature witness is a claim which is not established on the record. Apart from the fact that no blood-stained earth was recovered from the place of occurrence it is noticed that no blood-stained earth or a blood-stained cot was recovered from inside the Dera of this witness so as to provide support to this witness's claim in respect of the alleged taking of the deceased in an injured condition to this witness's Dera immediately after the occurrence. It is also difficult to ignore that this witness had also claimed to have picked-up the deceased immediately after the receipt of the injury by him but, surprisingly again, even his clothes also did not become blood-stained. It may also be pertinent to point out here that Ghulam Abbas (P.W.9) had also claimed that he had taken the injured person to the hospital but no record supports his claim in this regard. As a matter of fact the Medico-Legal Report in respect of Ghulam Murtaza Shah shows that it was Ghulam Rasool A.S.I. Who had taken the injured person to the hospital. For all,1 these reasons that claim of this witness to be an independent and natural witness also cannot be accepted without a lump of salt. The only other eye-witness produced by the prosecution in this case is Sher Muhammad (P.W.15) and he was also claimed by the prosecution to be an independent witness. It is an admitted position in this case that this witness lived one kilometer away from the place of occurrence and that he had claimed to have witnessed the occurrence when he had come to the street in question in order to see Ghulam Abbas (P.W.9). It is significant to notice that this chance witness had failed to give any reason whatsoever before the police or the learned trial Court for his proposed visit to the Dera of Ghulam Abbas (P.W.9). A chance witness who fails to satisfy the Court qua the reason of his visit to the place of occurrence ordinarily does not inspire confidence of the Court so as to be believed on a capital charge. There are certain other peculiar features to be found in his statement before the learned trial Court which make Sher Muhammad (P.W.15) an unreliable witness in this case. It has come on the record that in his statement before the police under section 161, Cr.P.C. He had maintained that the deceased was all alone at the time of occurrence and was not accompanied by the complainant. He had also stated before the police in the said statement that he had not heard or seen any altercation between the accused party and the complainant party before the firing of the shot by the appellant. Both these statements were not in line with the prosecution case as stated by Mumtaz Husain Shah complainant (P.W.8) and Ghulam Abbas (P.W.9). As a matter of fact this statement of his renders the entire prosecution story doubtful. This witness has also made a lot of improvements on a number of material aspect of this case as against his statement made before the police. It is again pertinent to mention that even this witness claimed to have taken the deceased in an injured condition to the hospital but, as observed earlier, the relevant Medico-Legal Report gives him a lie in this regard. His having taken the deceased to the hospital in an injured condition was not mentioned by him either in his statement before the police or in his statement made in the private complaint filed by the complainant. This, I find even this alleged eye-witness to be an unreliable witness on a capital charge.
14. There are certain other facts available on the record which cast a thick shadow of doubt over the claim of all these eye-witnesses to be present near the deceased at the time of occurrence. In the F.I.R, which is normally a sheet-anchor of the prosecution's case, it was expressly maintained that Ghulam Murtaza Shah had been got medically examined at the Hospital at Manch Bahauddin parivately by the complainant himself before lodging the F.I.R. Had this fact been established on the record that would have certainly lent credibility to the so-called eye-witnesses and to their claim of presence near the deceased at the relevant time. As against that it has been established on the record that it was Ghulam Rasool A.S.I. Who had brought the deceased in an injured condition to the hospital for his medical examination. This shows that the local police had been contacted even before the deceased had been taken to the hospital and that the F.I.R. Had not been recorded in the circumstances and at the time recorded therein. This factor seriously shakes the confidence of this Court as regards the veracity of these so-called witnesses.
15. Another factor in this respect which is also relevant to the discussion in hand is that all the accused persons are admittedly residents of the village where the occurrence had taken place whereas the deceased and his father had allegedly come to that village from another far off village. In the absence of any material on the record showing that the accused had any prior information about the proposed visit of the deceased and the complainant to the village of the accused party it is unbelieved that the accused party would have launched a premeditated and concerted attack on the deceased. Thus, the very basis of the prosecution case that the accused party emerged at the scene having armed itself with a firearm to teach a lesson to the deceased is extremely shaky.
16. In this context it is not to be lost sight of that these very eye-witnesses had not been believed either by the police or by the eye-witnesses to the extent of the presence and participation of two co-accused of the appellant in the occurrence in question. Their acquittal by the learned trial court has not even been challenged by the complainant party before this Court. Thus, these eyewitnesses were not incapable of false-hood or malicious implication.
17. It has seriously been argued before me by the learned counsel for the Complainant that the motive nursed by that appellant against the accused had been convincingly proved through none other than the father-in-law of the appellant himself. It was maintained by him that the nature of relationship between the appellant and Mahlay Shah (P.W.14) was such that it was not expected that P.W 14 would falsely deposed against the appellant. I have given my anxious considerations to this aspect of the case. At the trial the prosecution had alleged that the appellant was opposed to the proposed marriage of the deceased with the appellant's sister-in-law because the appellant wanted that the said sister-in-law of his should get married to the appellant's own brother. This motive set up at the trial was a major improvement on the motive set up in the F.I.R. In the F.I.R it was not mentioned that the appellant wanted the hand of the daughter of Mahlay Shah (P.W.14) for his own brother. This factor was also not mentioned even in the private complaint lodged by the complainant or in his statement made in the preliminary evidence in that complaint. I have also noticed that although Mahlay Shah (P.W.14) was the appellant's father-in-law yet there were reasons available for him to falsely implicate the appellant in the present case. This Mahlay Shah (P.W.14) was equally related to the complainant party inasmuch as the complainant's wife and Maylay Shah's wife are real sisters and the Investigating Officer (P.W.16) had also talked about strained relations between the appellant and his wife as a result whereof the appellant's wife had left the house of the appellant and had gone back to the house of her father Mahlay Shah before the occurrence. Therefore, there were reasons available on the record to doubt the so-called impartiality of Mahlay Shah (P.W.14). I am fortified in respect of doubting the statement of Mahlay Shah (P.W.14) by the fact that in his zeal to help the complainant party in this case he has gone to claim something which even the complainant had not claimed. For instance the complainant had not claimed to have gone Mahlay Shah's house before going to see Ghulam Abbas (P.W.9). But Mahlay Shah (P.W.14) has stated that the complainant and the deceased had come to his house before going to the Dera of Ghulam Abbas (P.W.9). This shows that he only wanted to strengthen the claim of the complainant to be present at the spot with the deceased by proving the same through the fact that the deceased was accompanied by the complainant throughout their visit to the village in question. The said Mahlay Shah also claimed to have taken the deceased in an injured condition to the hospital. This claim also does not find support from any record. It has also come on record that throughout the investigation in this case and throughout the proceedings before the learned trial Court Mahlay Shah (P.W.14) had been taking active part on the side of the complainant party. It further confirms his interest in favour of the complainant party and against the appellant. Thus, it would be naive to claim this witness to be an independent witness who was supposed to have a soft corner for his son-in-law i.e, the appellant. There is yet another factor available on the record which completely destroys the motive set up by the complainant party and supported by Mahlay Shah (P.W.14). In his statement before the learned trial Court the said Mahlay Shah had admitted that the appellant had not met him for the last six months before the present occurrence and also that during those six months there had been no contact between them whatsoever. If this were so then the prosecution's claim that the appellant was unhappy over and had protested against the proposal of marriage between the complainant's son and Mahlay Shah's daughter crumbles to the ground as the currency of the alleged motive looses its proximity with the occurrence. In this context I am also not unmindful of the fact that Mahlay Shah (P.W.14) made his first statement before the police in this case on 3-3-1993 whereas the occurrence in question had taken place on 6-2-1993. This shows that at least for a period of almost one month this witness had kept quiet and had subsequently been pressurized or won over to make the incriminatory statement before the police.
18. It is also relevant to point out that the learned trial Court had disbelieved this motive set up by the prosecution and the complainant party has not challenged this finding before this Court through a revision petition.
19. As regards the recovery of a 7 mm rifle from the appellant in connection with this case, suffice it to say that the said recovery is legally inconsequential as no crime-empty was recovered from the place of occurrence so as to connect the said rifle with the offence alleged against the appellant.
Even otherwise, it was admittedly a licensed rifle of the appellant.
20. Coming now to the medical evidence produced by the prosecution I do not see any necessity to discuss the same at some length in view of the fact that 1 if the so-called eye-witnesses are not believed by a Court then the medical evidence looses all its evidentiary value inasmuch as it cannot identify or locate the assailant who had. Caused the injuries to the victim. Even otherwise, medical evidence is never considered to be corroboratory evidence and the same is only a J supporting evidence. If the eye-witnesses in this case are taken out of consideration then the medical evidence cannot suffice by itself to fasten a finding of guilt of the appellant around it.
21. The only remaining piece of evidence relied upon by the prosecution against the appellant is an alleged dying declaration made by the deceased in this case. It is to be noticed that the occurrence in question took place on 6-2-1993 and the Investigating Officer (P.W.16) had allegedly recorded the said dying declaration (Exh.PO) on 11-2-1993 in the hospital when the deceased was in the care of Dr. Nusrat Riaz (P.W.13). The deceased had died on 14-2-1993. It has candidly been admitted by the Investigating Officer (P.W.16) that he had not associated any doctor or Magistrate with the recording of the said dying declaration or for witnessing the same. Dr. Nusrat Riaz (P.W.13) has also confirmed this fact by admitting that the said so-called dying declaration had not been recorded in his presence.. Thus, the legal requirements for treating the statement (Exh.PO) as a dying declaration have not been fulfilled by the prosecution and the said statement cannot, therefore, be admitted into evidence as a dying declaration.
22. 'Finally a few words about the suggestions made by the defence to the eye-witnesses regarding presence and participation of the appellant in the offence alleged against him. It has been argued by the learned counsel for the complainant that the defence has constantly put suggestions to the eye-witnesses that the appellant had committed this offence upon receipt of grave and sudden provocation at the hands of the deceased. This showed that the appellant had admitted that the deceased had died at his hands but the appellant had failed to prove the circumstances supporting his stand. It is to be noticed that while making his statement under section 342, Cr.P.C. The appellant had not taken this stand or plea. In that statement he had completely denied his presence or participation during the occurrence. Thus, these suggestions put by his learned counsel to the so-called eye-witnesses do not appear to be in line with the plea taken by the appellant. In this context I am quite aware of the settled law that the prosecution has to stand on its own legs in order to show the involvement of an accused person in an offence. It is also established law that if the prosecution fails to prove its case against an accused person beyond reasonable doubt then the defence plea or the defence evidence is not even to be looked at. As observed above, in the present case, the eye-witnesses produced by the prosecution have failed to inspire confidence of this Court and have also failed to receive any independent corroboration or support from any quarter. Therefore, the prosecution has failed to prove its case against the appellant beyond reasonable doubt. In this situation I would even refuse to entertain this argument by the learned counsel for the complainant.
23. For what has been observed above it is found that the prosecution has not succeeded in proving its case against the appelant beyond reasonable doubt. This appeal is, therefore, accepted and the appellant is acquitted of the charge against him.
24. Vide order dated 1-7-1997 the appellant had been admitted to bail by this Court during the pendency of the present appeal. His bail bonds/sureties shall stand discharged.