SHEIKH ABDUR RAZZAQ, J.--- Instant appeal is directed against the judgment, dated 17-9-1998 passed by Ch. Ghulam Rasool, Additional Sessions Judge/Judge, Suppression of Terrorist Activities (Special Court), Attock whereby he convicted Amanat Khan accused/appellant under section 302/34, P.P.C. And sentenced him to death and compensation of Rs,2 lacs or in default thereof to undergo R.I. For 2 years. He further convicted Umar Hayat accused/appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and compensation of Rs,1 lac or in default thereof to undergo R.I. For one year.
2. Briefly stated the facts are that on 7-11-1994 at 7-30 p.m. Muhammad Iqbal complainant (P.W.11) alongwith Lal Khan (P.W.12) were present in the street outside the house of his brother Noor Ahmed, Lumberdar and were talking. His brother Noor Ahmed after offering Isha prayer in the Masjid Malkanwali, was returning towards his house. When he reached in the street near the house of Liaqat Ali, the electric bulb was on. All of sudden, Amanat Khan son of Munawar Khan and Umar Hayat son of Ghulam Khan, armed with rifles, appeared raising Lalkaras to his brother Noor Ahmed that they would teach him lesson for not only abducting and contracting marriage with Mst. Atlas Bibi but also charging them for committing the theft of bullock of his nephew Abdul Ghani.
Thereupon, they started firing and the bullets landed on the right shoulder near the neck, left shoulder and left ankle. Noor Ahmed consequently, fell onlhe spot. Seeing this sad incident both the complainant and Lal Khan raised hue and cry upon which assailants fled away from the spot. On hearing fire shots Ghulab Khan son of Noor Khan and various other residents of the locality came on the spot. Noor Ahmed was then removed to his house, whereafter a while he succumbed to the injuries.
3. Motive as disclosed in the F.I.R. Leading to this sad incident is that firstly Noor Ahmed had abducted Mst. Atlas Bibi, a cousin of Amanat Khan accused, and thereafter, had solemnized marriage with her. And secondly Noor Ahmed had disgraced Amanat Khan by levelling false charge of committing the theft of bull of his nephew Abdul Ghani. This annoyed the accused who, in furtherance of their common intention committed the murder of Noor Ahmed. Leaving the dead body under the supervision of family members, he left for lodging the report.
4. Muhanunad Zamir, S.-I. (P.W.13) was posted as S.-I. At Police Station Attock Khurd on 7-11-1994. On the statement of Muhammad Iqbal, he jotted down F.I.R. Exh.P.I. And thereafter, made for the place of occurrence, where he prepared statement of injury of Noor Ahmed deceased Exh.P.J. And inquest report Exh.P.K. He dispatched the dead body for postmortem examination, through Muhammad Mushtaq, Constable (P.W.6). On the same day (8-11-1994) he secured blood-stained earth from the place where deceased fell down and prepared memo. Exh.P.A. He also secured 8 empties of 222 rifles Exh.P.1/1-8 vide memo. Exh.P.B. Abdul Ghani (P.W.4) and Azim Khan P.W. (not produced) attested the said memos. On the same day Muhammad Mushtaq Constable (P.W.6) produced last-worn blood-stained clothes of the deceased P.2 to P.4 which he secured vide memo. Exh.P.E. On 9-11-1994 he made inquiry regarding injury No,6 on the person of deceased from the doctor vide application Exh.P.D. Which contains his report Exh.P.D./1. He handed over the parcels to Moharrir and recorded the statements of witnesses. On 12-11-1994 he took Muhammad Hanif, Draftsman (P.W.8) to the place of occurrence who inspected the same as per his direction and delivered the site plans Exhs.P.F. And Exh.P.F./1 on 20-11-1994. On 15-11-1994 he arrested accused Amanat Khan who on. 18-11-1994 led to the recovery of 222 rifle P.6 which he secured vide memo.
Exh.P.G. On 18-11-1994 he arrested accused Umar Hayat who on 22-11-1994 led to the recovery of 222 rifle P.7 which he secured vide memo. Exh.P.H. He then completed the investigation and got the accused challaned.
5. A charge under section 302/34, P.P.C. Was framed against the accused/appellants to which they pleaded not guilty and claimed trial.
6. In order to bring home guilt to the accused, prosecution examined P.W.1 Sardar Bux, Constable who, on' 16-11-1994 was given two sealed parcels containing blood-stained earth and empties by Sana Ullah, A.S.-I. For delivering the same in the office of Chemical Examiner and Forensic Science Laboratory which he delivered there intact on 17-11-1994. P.W.2 Khalid Mehmood, Constable was given a parcel containing 222 rifles on 29-11-1994 by Sana Ullah A.S.-I., Moharrir for onward transmission to the office of Forensic Science Laboratory, which he delivered there on 30-11-1994.
P.W.3 Muhammad Iqbal Khan identified the dead body on 8-11-1994 at the time of autopsy. P.W.4 Abdul Ghani is the marginal witness of memo. Exh.P.A. By which blood-stained earth was secured from the place where the deceased had fallen on the ground. He is also witness of memo. Of recovery Exh.P.B. Pertaining to the 8 empties of 222 rifles Exh.P.1/1-8. P.W.5 Dr. Wasim Ahmed conducted the post-mortem Dr. Wasim Ahmed conducted the post-mortem examination on the dead body of Noor Ahmed deceased on 8-11-1994 at 7-00 a.m. And found the following injuries on his person:--
(1) A fire-arm entry wound 1 c.m. x 1 c.m. On outer margin of left shoulder blackening was present.
The track of the wound was going towards right shoulder.
(2) An exit wound 1-1/2 c.m. x 2 c.m. On right side of neck four inches away from outer margin of right shoulder. Corresponding marks of wound were on Qamiz.
(3) An entry wound 1 c.m. x 1 c.m. On outer side of left leg above left knee.
(4) An exit wound on inner side of leg above left knee.
(5) Abrasion 2 c.m. x 1 c.m. On right side of middle of nose.
(6) An abrasion 3 c.m. x 1 c.m. On left side of neck.
7. In his opinion cause of death was injury No,1 caused by fire-arm resulting in haemorrhage, shock and cardio pulmonary failure. In the ordinary course of nature said injury was sufficient to cause death which was ante-mortem in nature. Probable time which elapse between injuries and death was immediate whereas between death and post-mortem examination was about 10/14 hours.
After the post-mortem examination he handed over the dead body alongwith copy of post- mortem examination report as well, as last-worn clothes of the deceased to the police Exh.P.C. Is the correct carbon copy of post-mortem examination report whereas Exh.P.C./1 is the pictorial sketch of the same. He further deposed that on 9-11-1994 an application Exh.P.D. Was moved by the Investigating Officer seeking inquiry about injury No,6, upon which his report Exh.P.D./1 shows that possibility could not be ruled out that injury No,6 could be caused by fire-arm. P.W.6 Muhammad Mushtaq, constable escorted the dead body on 8-11-1994 for post-mortem examination and later on produced the last-worn clothes of the deceased before the Investigating Officer, who secured it vide memo. Exh.P.E. P.W.7 Sana Ullah Moharrir/A.S.-I. Deposed about keeping the parcels containing blood-stained earth, empties, 222 rifles and thereafter, delivering the same to Sardar Bux, Constable (P.W.1) and Khalid Mehmood, Constable (P.W.2) for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory. He further deposed that on 8-12-1994 he produced 222 rifle before the Armour for his inspection and report. Thereafter, he never sealed the said rifle. P.W.8 Muhammad Hanif Draftsman deposed that on 12-11-1994 he visited the place of occurrence as per direction of police in the presence of witnesses, prepared site plan Exhs.P.F. And P.F./1 and handed over the same to the Investigating Officer on 20-11-1994 and these bear his signatures. P.W.9 Muhammad Ashraf is witness of recovery alongwith Aurang Zaib P.W. (not produced) of 222 rifle P.5 alleged to have been produced by accused/appellant Amanat Khan and secured vide memo. Exh.P.G. P.W.10 Khurshid Ahmed is another witness of recovery of 222 rifle P.7 alleged to have been recovered at the instance of Umar Hayat accused and secured vide memo.
Exh.P.H. P.W.11 Muhammad lqbal/complainant is scriber of F.I.R. Exh.P.I. And has corroborated his version appearing therein. P.W.12 Lal Khan is an eye-witness of this occurrence and has corroborated the prosecution version. P.W.13 Muhammad Zamir, S.-I. Is the Investigating Officer whose evidence has already been discussed above. The learned D.D.A. Produced the reports of Chemical Examiner, Serologist and Forensic Science Laboratory Exhs.P.L., P.M. And P.N. Respectively, and thereafter closed the prosecution case.
8. When examined under section 342, Cr.P.C. Accused Amanat Khan admitted that Mst. Atlas Bibi was abducted by the deceased and later on solemnized marriage with her. He denied the other allegation of the prosecution and stated that he had been implicated in this case falsely. Similarly the accused Umar Hayat admitted the factum of abduction of Mst. Atlas Bibi at the hands of Noor Ahmed deceased and of his marriage with the said lady. He stated that deceased was a man of questionable character and had several enemies, due to his nefarious activities. The accused Amanat Khan produced documents Exhs.D.A. And D.D. To D.N. Whereas Umar Hayat produced documents Exhs.D.B. And D.C. And thereafter closed their defence evidence.
9. After going through the evidence produced by the parties, the trial Court convicted and sentenced the accused/appellants vide judgment under appeal. Alongwith this appeal Criminal Revision No,93 of 1998 has also been filed for enhancement of compensation in respect of respondent No,1 and for enhancement of sentence in respect of respondent No,2. As both these appeal and revision arise out of the same judgment so these are being disposed of by this single judgment.
10. We have heard the learned counsel for the parties and have gone through the record with their assistance.
11. Learned counsel for the appellants has assailed the findings of the trial Court regarding motive aspect of the prosecution version. He contended that as per F.I.R. One of the motives ascribed to the deceased is that he had levelled false charge of theft of the bull of Abdul Ghani against accused Amanat Khan, that admittedly no case regarding said theft was ever got registered with police, as such said motive fizzles out and at the same time creates doubt in the prosecution story.
He next argued that prosecution has tried to seek corroboration from evidence of recovery of rifle at the instance of accused. But here again prosecution has failed to prove the participation of Umar Hayat accused as the report of Forensic Science Laboratory Exh.P.N. Shows that empties P.1/1- 8 have been fired from the rifle recovered at the instance of amanat Khan only. The presence of Umar Hayat at the spot becomes further doubtful. He further submitted that even medical evidence which has come on record through the statement of Dr. Wasim Ahmed (P.W.5) reveals that injuries on the person of deceased have been caused by one fire-arm as the description of the injuries clearly reveal that it has been caused by one fire-arm and not by two fire-arms, as alleged by the prosecution. Thus, the statement of Dr. Wasim Ahmed (P.W.5) further supports the defence version and makes the prosecution case doubtful regarding the presence of accused/appellant Umar Hayat on the spot. Regarding ocular account of the prosecution version, he contended that same stands corroborated by interested witnesses as Muhammad Iqbal (P.W.11) is brother of the deceased whereas Lal Khan (P.W.12) is also relative of the deceased as father of the deceased as well as Lal Khan (P.W.12) were cousin inter se. He, thus, argued that there being no independent corroboration of the prosecution version, it is not safe to rely upon the testimony of interested and inimical witnesses (P.Ws.11 and 12). He further contended that even the site plan Exhs.P.F. And P.F./1 makes the presence of eye-witnesses doubtful. While explaining his contention, he submitted that accused are said to have fired from point No,3 when the deceased was at point No,1 and 'eyewitnesses were at point No,4. He argued that had the eye-witnesses been at point No,4, they must have been hit by the fire shots made from. Point No,3 which is in line with points Nos.1 and 4.
12. Conversely, the learned counsel for the complainant, assisted by the learned counsel for the State supported the judgment under appeal.
13. Now let us analyze the evidence and see if the prosecution has succeeded in bringing home guilt to the accused/appellants or not. According to the prosecution version contained in F.I.R.
Exh.P.I the first motive behind this occurrence is that Mst. Atlas Bibi, a cousin of Amanat Khan accused/appellant was abducted by the deceased who later on contracted marriage with her. The other limb of the motive is that deceased suspected Amanat Khan to be responsible for committing the theft of bullock of his nephew Abdul Ghani. There is no doubt that prosecution has not brought on record any convincing evidence to the extent of motive pertaining to the theft of bullock of Abdul Ghani, nephew of the deceased, yet the other limb of motive stands admitted even by the accused while recording their statement under section 342, Cr.P.C. Wherein they have categorically admitted that deceased had abducted and later on solemnized marriage with Mst.
Atlas Bibi, a cousin of Amanat Khan accused/appellant. This admission on the part of accused proves that they had a cause of grievance to commit this offence.
14. So far as the evidence pertaining to the recovery of 222 rifles from accused/appellants is concerned, prosecution has brought on record evidence of P.W.9 Muhammad Ashraf who is the witness of recovery of 222 rifle P.5 at the instance of accused/appellant Amanat Khan. Prosecution has also examined P.W.10 Khurshid Ahmed who is witness of recovery of 222 rifle P.7 at the instance of Umar Hayat accused/appellant. Prosecution has also brought on record evidence in the form of Report of Forensic Science Laboratory Exh.P.N. Prosecution has also examined P.W.1 Sardar Bux, Constable who delivered the parcels of empties in the office of Forensic Science Laboratory on 17- 11-1994 which were given to Sana Ullah, A.S.-I. By Muhammad Zamir, S.-I. For keeping the same in Malkhana. Prosecution has also examined Khalid Mehmood Constable (P.W.2) who delivered the parcels containing 222 rifles in the office of Forensic Science Laboratory on 30-11-1994. There is no doubt that prosecution has tried to prove the presence of Umar Hayat accused/appellant by alleging recovery of 222 rifle P.7 at his instance, yet it has failed to connect the said rifle with him i,e, accused/appellant Umar Hayat, as per Forensic Science Laboratory report Exh.P.N., empties P.1/1-8 have been found to be wedded with 222 rifle P.5 recovered at the instance of Amanat Khan accused/appellant. None of the empties has been found to be fired from 222 rifle P.7 recovered at the instance of accused/appellant Umar Hayat. Thus, the evidence of recovery of empties only proves the participation of Amanat Khan and it does not advance the prosecution case regarding the participation of Umar Hayat.
15. So far as the medical evidence which has come on record through the statement of Dr. Wasim Ahmed (P.W.5), it also shows that injuries caused to the deceased have been caused by one fire- arm alone. The description of injuries on the person of deceased clearly reveals that these are the result of one fire-arm. Admittedly injuries Nos.1 and 3 are wounds of entry whereas injuries Nos.2 and 4 are exit wounds. It is also fact that dimension of injuries Nos.1 and 3 is same. Similarly the width of injuries Nos.5 and 6 is also same. Since the dimension of injuries Nos.1 and 3 is same and so the width of injuries Nos.5 and 6, so it is proved that these have been caused with one fire-arm.
Thus, even the medical evidence proves the participation of one person in the commission of this offence who is none else ',except Amanat Khan, as -empties P.1/1-8 have been fired from his rifle P.S. Thus, medical evidence further corroborates the prosecution version only to the extent of participation of accused/appellant Amanat Khan.
16. There remains the ocular account of the occurrence which has come on record through the statements of Muhammad Iqbal (P.W.11) and Lal Khan (P.W.12). Admittedly complainant is the real brother of the deceased and P.W.12 is his cousin. Both of them have corroborated prosecution version appearing in F.I.R. Exh.P.I. And have tried to prove the presence and participation of the accused/appellants in the commission of this offence. However, as their oral statements do not find support either from evidence of recovery or medical evidence, so we hold that it was only accused/appellant Amanat Khan who was responsible for causing the murder of deceased and further hold that prosecution has failed to connect the accused/appellant Umar Hayat with the commission of this offence.
17. In the light of facts narrated above, we are convinced that prosecution has failed to prove the participation of Umar Hayat accused/appellant in the commission of this offence beyond any shadow of doubt. Accordingly, we accept the appeal and set aside the impugned judgment of conviction, passed against Umar Hayat accused/appellant and acquit him. He is ordered to be released forthwith if not required in any other case.
18. So far as Amanat Khan accused/appellant is concerned, prosecution has succeeded in bringing home guilt to him beyond any shadow of doubt, so the appeal to the extent of Amanat Khan is dismissed.
19. For reasons given above, we do not find any force in the Criminal Revision No,93 of 1998 and dismiss the same.