' This judgment will dispose of Criminal Appeal No,766 of 1999 filed Haji Bahadar Khan appellant, Criminal Appeal No,808 of 1999 and Criminal Appeal No,982 of 1999 filed by Muhammad Khan and Abaid Ullah appellants while there is a Criminal Revision No,472 of 1999 filed by Easab Khan for the enhancement of sentence against Muhammad Khan etc. All the appellants were convicted and sentenced by learned Additional Sessions Judge-II, Mianwali for the murder of Karim Nawaz under section 302(b)/34, P.P.C. To undergo life imprisonment each with the direction to pay Rs,25,000 (twenty five thousand) each or in default thereof six months" S.I. Each. They were also directed to pay a compensation of Rs,25,000 (twenty-five thousand) each to the legal heirs of the deceased under section 544-A, Cr,P.C. Or in default six months' S.I. Each. Benefit of section 382-B, Cr,P,C. Was also granted to the appellants.
2. Occurrence in this case took place on 21-11-1997 at 10-00 a.m. Within the area of village. Sawans at a distance of 14 K.Ms. Away from Police Station Pai Khel, District Mianwali while the matter was reported to the police on the same day at 12-30.p.m. And the formal F.I.R. Was recorded by Ahmad Sajjad, S.-I./S.H.O., P.W.10.
3. Brief facts of this case are that on 21-11-1997 Karim Nawaz a grown-up son of Easab Khan complainant was murdered and this case was got registered by him with Police Station Pai Khel, vide F.I.R. Exh.P.A, wherein he has stated that he is a Zamindar by profession and has established his dera in his agricultural land. His brother Fateh Khan has also established his Dera at a distance of 30 Karams from his Dera. Muhammad Khan and Haji Bandar Khan accused/appellants were on visiting terms with his brother Fateh Khan. Both of them are persons of bad repute and are vegabonds. It was, general rumour that they had established illicit relations with his "Bharjaee", i,e,, the wife of said Fateh Khan and due to this reason people raised fingers upon the (complainant and his family members), therefore, he had prohibited both of them to visit the house of his said brother. On the day of occurrence, both the above said accused/appellants-alongwith Abaid Ullah accused/appellant came in the house of his brother Fateh Khan. They (complainant and his companions) saw them sitting in the house of said Fateh Khan and sent Abi Zar and Lal Khan, who were present at their Dera at that time, towards them (accused/appellant) to ask them as to why they had come there despite prohibition, but all the three accused persons started talking with them in hot words. Hearing their voices, he and his son Karim Nawaz (deceased) went to the dera of said Fateh Khan. Complainant asked all the three accused persons as to why they had come there despite prohibition. Hearing so, all the three accused brought out .12 bore pistols, which were concealed by them in the folds of their Shalwars. Muhammad Khan accused/appellant fired straight at his son Karim Nawaz which hit him on the front left side of his chest and left arm and he immediately after receiving the fire-arm injuries fell down on the ground. Abaid Ullah and Haji Bahadur Khan accused fired at the complainant and said Abi Zar and Lal Khan with the help of their pistols but they saved their lives by taking shelter of a wall. After seeking his, son lying on the ground, the accused persons made good their escape towards North of the place of occurrence while firing. The complainant and his companions attended the said Karim Nawaz, but he had succumbed to his injuries on the spot.
4. Motive behind the occurrence is stated to be the visit of the said accused persons to the house of Fateh Khan in connection with their illicit relations with his wife and their prohibition by the complainant.
5. After registration of the case, Ahmed Sajjad S.-I./S.H.O., P.W.10 proceeded to the place of occurrence, prepared injury statement Exh.P.F. And inquest report Exh.P.G. He collected blood- stained earth from underneath the dead body of Karim Nawaz deceased and took the same into possession vide recovery memo. Exh.P.B. He also took into possession a cock and plastic 'Gatta', through recovery memo. Exh.P.C. He arrested alL the three accused/appellants on 18-12-1997. On 25-12-1997 while in police custody Muhammad Khan accused/appellant led to the recovery of pistol .12 bore P.1 alongwith 2 live cartridges P.2/1-2 and empty cartridge P.3, which were taken into possession vide memo. Exh.P.D. No recovery was affected from Haji Bahadur Khan and Abaid Ullah.
Accused/appellants. After completion of investigation challan was submitted against all the appellant to face the trial.
6. Prosecution in order to prove its case produced 10 witnessed in all, therefore, learned District Attorney, tendered in evidence reports of Chemical Examiner and that of Serologist Exh.P.M and Exh.P.N respectively and closed the prosecution case, then the statements of the appellants were recorded under section 342, Cr.P.C, in which they pleaded innocence and claimed false implication in this case.
7. Learned counsel for the appellants have referred to the statement of Dr. Muhammad Ashfaq, Medical Officer, P.W.5, who had conducted post-, mortem examination on the dead body of the deceased Karim Nawaz on 21-11-1997 at 4-45 p.m. The stance of learned counsel for the appellants is that there is a major conflict between ocular account and medical evidence. They submits that according to the prosecution case as stated in the F.I.R. And before the learned trial Court was that only one fire was shot by Muhammad Khan appellant and that was hit to Karim Nawaz deceased while according to the post-mortem there are six fire-arm injuries, injuries Nos.1 to 5 are entry wounds so there is a clear conflict between ocular account and medical evidence. They further submit that eye-witnesses produced by the prosecution are closely related to the deceased, that according to the F.I.R. And the prosecution witnesses the occurrence had taken place in the house of Fateh Khan, who is real brother of Eisab Khan, the complainant in this case, neither he was cited as a witness nor he was produced by the prosecution before the learned trial Court. They submit that prosecution has failed to prove the motive against the appellants beyond any shadow of doubt in the instant case. They add that as far as recovery of weapon is concerned, that has been disbelieved by the learned trial Court. They submit that in fact 'all the eye-witnesses-were not present at the spot at the time of occurrence. They submit that only one fire was shot as stated by P.Ws. But three innocent persons have been falsely ropped in the instant case.
8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R., that it was a broad daylight occurrence, that all the three appellants while armed with fire-arm criminally trespassed into the house of Fateh Muhammad brother of the complainant and committed the murder of Karim Nawaz. They submit that there is no conflict between ocular account and medical evidence and the prosecution has proved its case against all the appellants beyond any shadow of doubt.
9. I have heard the learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, three eye witnesses have been produced by the prosecution namely Eisab Khan, P.W.1 father of the deceased, Lal Khan P.W.2 brother-in-law of the complainant (P.W.1) and Abizar Khan P.W.3 cousin of the deceased Karim Nawaz, no inmate of the house of Fateh Khan where this occurrence had taken place was either cited as a prosecution witness or produced by the prosecution. Motive stated by the prosecution was that two of the appellants namely Haji Bahadar Khan and Muhammad Khan had illicit relations with the wife of Fateh Khan real brother of Eisab Khan complainant P.W.1 but neither Fateh Khan and cited as a prosecution witness in the calander of witnesses nor he was produced by the prosecution and there is not an iota of evidence on record to prove this motive against the appellants, even it has come on record that wife of Fateh Khan was aged about 60/65 years, in my view at this age, the allegation of illicit relation with anybody does not appeal to sense. Moreover, in District Mianwal, nobody would allow any person to enter into his house for having illicit relation with his wife, so 'I disbelieve the motive as stated by the prosecution.
10. For the just decision of the case, statement of Dr. Muhammad Ashfaq, M.0, who had conducted post-mortem examination on the dead body of the deceased is reproduced below; "On 21-11-1997 when I was posted as CMO at DHQ, Hospital Mianwali, I conducted the post-mortem examination upon the dead body (at 4-45 p.m.) of Karim Nawaz son of Eisab Khan found the following injuries on the dead body:--
(1) A group of six fire-arm wounds of entry each measuring 1/2 c.m. x 1/2 c.m. In the area of 7 x 6 c.m. 3 c.m. Above left the nipple on the front of left side of chest.
(2) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the left lateral side of chest 8 c.m. Below the left nipple at 4-00 clock position.
(3) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the left side of chest, 4 c.m. Below the left nipple at 7-00 clock position.
(4) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the right side of chest 8 c.m. From the right nipple at 3.0 clock position.
(5) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the outer side of left upper arm 12 c.m. Above the left elbow joint.
(6) A fire-arm of exit 1/2 c.m. x 1/2 c.m. On the back of left upper arm 10 c.m. Below the left axilla.
Opinion.
' In my opinion, the cause of death was due to haemorrhage and shock, as a result of injuries Nos.1, 2, 3 and 4 which caused damage to heart, right and left lungs, liver and vital organs of body. These injuries were grievous and dangerous to life and were sufficient to cause death in the ordinary course of nature. Injuries Nos.5 and 6 were also grievous. All the injuries were anti-mortem caused by fire-arm weapon.
' Probable time that elapsed between injury and death immediate between death and post- mortem about 7 hours ' It is correct that injury No,1 which was in the shape of a group of six wounds can be a result of single fire. The said fire was made from a distance of more than 6 to 30 feet. It is correct that while making the said fire, the assailant was in front of the victim.
' The person who caused injury No,2 might be at a remoter place than the person who caused injury No,
1. The injuries Nos.3 and 4 were also caused from the same distance as that of injury No,2.
It is correct that injuries Nos.3 and 4 had not exit wounds.
' Injury No,6 is exit wound of injury No,5. It is correct that injuries Nos.1 to 4 were caused by pellets. I cannot tell whether injury No,5 was caused through a bullet or pellet because from injuries Nos.5 and 6, no bullet or pellet were recovered. While inflicting injury No,5 the assailant was towards left side of the victim and not on his back side. Injury No,5 was inflicted from a closer distance as compared to injuries Nos.2 to 4.
11. After going through the statement but for the sake of arguments if it is admitted that injuries Nos.1 to 4 were caused with one shot, but injury No,5 on the back of left arm of the deceased is an entry wound, this cannot be caused in any way from the front side. However, doctor had also admitted that there are number of shots on the person of the deceased and this is also clear from the cross-examination and admitted by the doctor. Eye-witnesses produced by the prosecution are closely related to each other and also related to the deceased. They were not resident of the place of occurrence. Natural witnesses have not been produced by the prosecution/There was previous background of enmity between the parties about the murders from each side, recovery has been disbelieved by the learned trial Court. There is no report of fire-arm expert.
12. Considering the overall facts, circumstances of the case and glaring conflict between ocular account and medical evidence and moreover as far as Abaid Ullah and Haji Bahadar Khan, no injury is attributed to them and no recovery was effected from them, all the appeals filed by the appellants are accepted. Conviction and sentence awarded td the appellant is set aside. They shall be released forthwith if not required in any other case.