' By this appeal, judgment, dated 28-11-1990, passed by Ch. Muhammad Aslam Khokhar, Sessions Judge, Khushab, has been assailed whereby he convicted the appellant Sahib Khan under section 302, Pakistan Penal Code and sentenced him to life imprisonment and a fine of Rs,10,000 or in default thereof R.I. For six months. He has further ordered to pay compensation of Rs,10,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof undergo R.I. For six months.
2. Briefly stated the facts are that Akbar Ameer son of Ghulam Shabbir is an Army personnel and had come to his village on two months leave. On 11-4-1989 at 8-00 a.m., Akbar Ameer came to bus stand Daiwal for going to Khushab where complainant Ghulam Shabbir and Gulbaz son of Muhammad Bakhsh were also present. In the meanwhile, Sahib Khan armed with a rifle appeared from Masjid Wali Gali and shouted at Akbar Ameer that he would be taught a lesson for abducting his sister and simultaneously fired with his rifle hitting Akbar Ameer at his chest. Sahib Khan aimed his second shot at him (complainant) but fortunately it missed. As a result of fire shot, Akbar Ameer fell on the ground and succumbed to the injury. The assailant then ran away towards mountains.
The incident was witnessed by Gulbaz son of Muhammad Bakhsh and Haqnawaz son of Pathan Khan who happened to be present at the bus stand. The motive behind this occurrence is stated that about one and half year prior to this occurrence, Mst. Bivi, sister of Sahib Khan disappeared and a case of her abduction was registered against the complainant and others at the instance of father of accused. Leaving the dead body under the supervision of Gulbaz and Haqnawaz, he proceeded to lodge the report, which was recorded by P.W.11 Ainanullah, Khan, S.-L; who thereafter proceeded to the place of occurrence and prepared inquest report Exh.P.G. And injury statement Exh.P.H. He then handed over the dead body to Sher Afzal F.C. For post-mortem examination. He visited the place of occurrence and secured blood-stained earth and made a sealed parcel of the same vide memo. Exh.P.B. He recorded the statements of Haqnawaz and Gulbaz. After post- mortem examination, Sher Afzal Constable produced before him last-worn clothes of the deceased P.1 to P.3 which he secured vide memo. Exh.P.C. He also got prepared site plans Exh.P.E.
And Exh.P.E./1 from the draftsman. He handed over parcel containing blood-stained earth to Muhammad Sher, Head Constable for keeping the same in Malkhana. The remaining investigation was conducted by P.W.12 Farhat Mahmood who arrested the accused on 27-4-1989. On 28-4-1989, the accused led to the recovery of rifle P.4 ankle 17 live cartridges Exh.P.5/1-17 from a residential room of his house which he secured vide memo. Exh.P.D. After completing investigation, the accused was sent to Court to face trial.
3. A charge under sections 302 and 307, P.P.C. Was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to, bring home guilt to the accused, prosecution examined P.W.1 Dr. Muhammad Sharif who on 11-4-1989 conducted post-mortem examination on the dead body of Akbar Ameer which was brought by Sher Afzal F.C. And was identified by Muhammad Nawa son of Muhammad Baldish and Muhammad Nawaz son of Ghulam Hussain. He found that dead body was of a young healthy person and rigor mortis was present all over the body. Postmortem staining was also present. He found the following injury on the dead body:-- "A lacerated wound3 x 4 c.m. x 1/4 on right side of front of chest with the same wound in chest close to posterior axillary line in opposite side."
' He detected no abnormality in skull and vertebrae as well as in brain and spinal cord. He found that stomach was full of contents and all other organs were normal. In his opinion, the injury was ante mortem caused by fire-arm with the wound of entrance on the right side of chest in front close to the right shoulder joint and the opposite wound close to the posterior axillary line was wound of exit. The injury was sufficient to cause death in the ordinary course of nature. In his opinion, probable time between injury and death was immediate whereas between the death and post-mortem examination was 2 to 3 hours. He issued post-mortem examination report Exh:P.A.
Which bears his signature. He handed over police papers and clothes to Sher Afzal F.C. Along with dead body. P.W.2 Muhammad Nawaz son of Muhammad Bakhsh has deposed that he had identified the dead body whereas P.W.3 Nazir Ahmad is a witness of recovery of bloodstained earth which was secured vide memo. Exh.P.B. P.W.4 Sher Afzal F.C. Was handed over dead body on 11-4- 1989 for taking to Civil Hospital, Khushab for post-mortem examination. After post-mortem examination, he was handed over last-worn clothes of the deceased which he produced before the Investigating Officer who secured the same vide memo. Exh.P.C. P.W.5 Muhammad Sher H.C.
Has deposed that on 11-4-1989, he was handed over a parcel containing blood-stained earth by Shaukat Khan, S.-I. For keeping the same in Malkhana. On 16-4-1989, he delivered the said parcel to Sibtain F.C. For onward transmission to the office of Chemical Examiner, Lahore. P.W.6 Muhammad Sibtain Shah F.C. Has corroborated version of P.W.5 regarding delivery of parcel in the office of Chemical Examiner on 16-4-1989. P.W.7 Amir Mukhtar has deposed that on 28-4-1989, the accused led the police party to his house and produced rifle P.4 and live cartridges P.5/1-17 from the residential room of his house, which was secured vide memo. Exh.P.D. Which bears his signature.
P.W.8 Muhammad Saleem is a draftsman who visited the place of occurrence on 14-4-1989 and prepared rough notes on the potation of witnesses. On 18-4-1989 he prepared site plans Exhs.P.E.
And P.E./1 and handed over the same to the police. P.W.9 Ghulam Shabbir complainant has corroborated his version appearing in F.I.R. Exh.P.F. P.W.10 Haqnawaz is an eye-witness of this occurrence who has corroborated his version as given in F.I.R. Exh.P.F. P.W.11Amanullah Khan and P.W.12 Farhat Mahmood, S.-I. Are the Investigating Officers whose evidence has already been discussed above. The learned District Attorney produced Report of Chemical Examiner Exh.P.I. And that of Serologist Exh.P.J. And after giving up other witnesses, closed the prosecution evidence vide statement, dated 28-3-1990.
5. Statement of the accused Sahib Khan has been recorded under section 342, C.P.C. Wherein he denied the prosecution version as well as factum of recovery of rifle P.4 and live cartridges P.5/1-17.
He stated that he had been involved in this case due to enmity. He further stated that he would neither examine himself under section 340(2), Cr.P.C. Nor would like to produce defense evidence.
6. After going through the evidence brought on record, the learned trial Court convicted the accused/appellant vide judgment under appeal. -
7. Arguments have been heard and record perused with the assistance of learned counsel for the appellant.
8. It is submitted by learned counsel for the appellant that prosecution case mainly rests upon the statements of P.W.1 Dr. Muhammad Sharif, P.W.9 Ghulam Shabbir complainant and P.W.10 Haqnawaz, as all other witnesses are of formal nature and evidence pertaining to recovery of rifle as well as of motive has been disbelieved by the trial Court. He next urged that even the statements of P.Ws.1, 9 and 10 have not been corroborated by any independent evidence -and are also full of discrepancies and contradictions. While referring to the statement of P.W.9 Ghulam Shabbir complainant, he submitted that as per his version, incident took place at 8-00 a.m. And as per statement of P.W.1 Dr. Muhammad Sharif, the time between death and post-mortem examination was 2 to 3 hours, that according to Medical Officer, rigor mortis was present all over the dead body at the time of post-mortem examination, that this admission of Medical Officer clearly shows that death had not taken place 2 to 3 hours, but had taken place about 12 hours of post-mortem examination, as rigor mortis commences in 2 to 3 hours after death, takes about 12 hours to develop from head to foot, persists for another 12 hours, and takes about 12 hours to pass off, as per Parikh's Textbook of Medical Jurisprudence and Toxicology page 151, which further stands corroborated from Thirteen Edition Taylor's Principles and Practice of Medical Jurisprudence which also contains that rigor mortis usually commence within 2 to 4 hours of death, it reaches a peak in about 12 hours and starts to disappear after another 12 hours. He, thus, submitted that had the death taken place at 8-00 a.m., rigor mortis could not be present all over the dead body within 2 to 3 hours and all these facts clearly show that either the complainant as well as Haqnawaz (P.W.10) have told lie about the time of occurrence or the Medical Officer. He further submitted that time of death of deceased becomes further doubtful, as the relevant column of post-mortem report Exh.P.A. Regarding time of death is lying blank. Even the column as to when the dead body was brought is blank.
9. So far as the presence of complainant Ghulam Shabbir and Haqnawaz is concerned, he submits that their presence also becomes doubtful when their statements Are scrutinized in the light of facts relating to the time of occurrence. Besides this, he submitted that as per admission of P.W.9, there are 15/16 shops around the place of occurrence and some of the shopkeepers did witness the incident. Here P.W.9 Ghulam Shabbir complainant stands belied by P.W.10 Haqnawaz who gives the number of said shops as only two and further states that none except the. P.Ws. Had witnessed the occurrence. Thus, these contradictions in their statements clearly make their very presence at the spot highly doubtful. He next argued that as per P.W.11 Amanullah Khan, S.-I., he examined the shopkeepers, but had.Not cited them as witnesses, that this fact further shows that said witnesses had not supported the prosecution version, otherwise, they being independent witnesses, must have been cited in the column of witnesses, that the trial Court has not believed the statement of complainant regarding assault upon him as well as motive, which also makes his entire statement doubtful. He, thus, submits that the prosecution has miserably failed to prove its case against accused and the impugned judgment is not sustainable in the eyes of law.
10. On the other hand, learned counsel, for the State has half-heartedly supported judgment under appeal. He submitted that prosecution version stands corroborated by P.W.9 Ghulam Shabbir as well as P.W.10 Haqnawaz, that their ocular account stands corroborated by medical evidence that as occurrence took place at broad daylight, so the question of substitution and false implication does not arise. He submitted that the mere fact that rigor Mortis was present all over the dead body of the deceased does not mean that occurrence had not taken place at 8-00 a.m., as alleged in the F.I.R. He further submitted that P.W.1 Dr. Muhammad Sharif was not cross-examined on that score, as such, no benefit can be derived on that count.
11. According to prosecution stand, occurrence took place at 8-00 a.m., and the same was witnessed by the complainant Ghulam Shabbir and Haqnawaz. Both of them have been examined and their evidence has been discussed above. Besides their statements, prosecution has also examined P.W.1 Dr. Muhammad Sharif. As per statement of P.W.1, the time between death and post- mortem examination is 2 to 3 hours. As per F.I.R. Exh.P.F., incident took place at 8-00 a.m., so the post-mortem examination might have been conducted at 10 or 11 a.m. It is also admitted by P.W.1 Dr. Muhammad Sharif that rigor mortis was present all over the dead body. Now as per medical jurisprudence referred by the learned counsel for the appellant, rigor mortis starts appearing within 2 to 3 hours, takes 12 hours to develop over the entire body and then takes further 12 hours .To pass off. Learned counsel for the State has not been able to rebut this assertion of the other side. The presence of rigor mortis all over the dead body of the deceased clearly proves that death had taken place at least 12 hours prior to the post-mortem examination. If this proposition is accepted as correct, which has to be, as there is nothing to rebut this, so the occurrence cannot be said to have taken place at 8-00 a.m. As alleged in the F.I.R. Again the statements of P.W.9 and P.W:10 also contradict each other regarding the existence of shops at the spot and of witnessing the incident on their part. This discrepancy in their statements also makes their presence highly doubtful. The stand of defence counsel that occurrence had not taken place at 8-00 a.m. Further stands corroborated from the fact that no independent witness has been examined in the instant, case.
Admittedly, 15/16 shops are situated around the place of occurrence as per admission of P.W.9 and some of the shopkeepers had also witnessed the occurrence and their statements were also recorded by the police, but none of said shopkeepers has either been cited as a witness or examined in Court. This fact further makes the prosecution case doubtful regarding the time . Of occurrence. Again P.W.10 Haqnawaz has contradicted P.W.9 Ghulam Shabbir complainant regarding existence of shops at the place of occurrence as he has admitted that there are only two shops at the bus, stand (place of occurrence). Again P.W.10 admits that none except prosecution witnesses had witnessed the said occurrence. This admission on the part of P.W.10 'excludes the possibility of witnessing the occurrence on the part of some of the shopkeepers as admitted by P.W.9. Again it is fact that P.W.10 Haqnawaz has admitted that P.W.9 Ghulam Shabbir complainant is his first cousin. Thus,' there is the evidence of only two interested witnesses who are both inter related and who contradict each other on vital aspect of the matter. This. Ocular account of P.W.9 and P.W.10 does not find corroboration even from evidence of recovery of rifle P.4 as the same was not sent to the Forensic Science Laboratory for its comparison with the empty cartridge recovered from the place of occurrence. All these facts clearly show that prosecution has failed to prove that incident had taken place in the presence of P.W.9 Ghulam Shabbir and P.W.10 Haquawaz at 8-00 a.m. And there is strong possibility that occurrence had taken piace at odd hours of the night and accused has been made a scapegoat on account of previous enmity going on between the parties.
12. The upshot of above discussion is that ocular evidence suffers from inherent defects and has not been corroborated either by medical evidence or by evidence of recovery, so it is held that prosecution has failed to bring home guilt to the accused/appellant beyond any shadow of doubt.
Accordingly, appeal is accepted and conviction and sentence awarded is set aside and accused/appellant is acquitted. He is ordered to be released forthwith if not required in any other case.