TALAT QAYUM QURESHI, J.---Abdul Aziz and three others have filed Criminal Appeal No,48 of 1995 against the judgment of the learned Additional Sessions Judge, Abbottabad, dated 6-12-1995 whereby he convicted Abdul Aziz alias Aziza under section 302, P.P.C. And sentenced him to 14 years' R.I. With direction to exclude the period of imprisonment already undergone by him and convicted the other three appellants under section 307, P.P.C. And sentenced each of them to three years' R.I. And fine of Rs, 5,000 each or else to undergo further simple imprisonment for six months.
Benefit of section 382-B, Cr.P.C. Was also extended to all the appellants.
2. Sher Zaman son of Sultan Muhammad has also filed Criminal Appeal No,2 of 1996 under section 439, Cr.P.C. Against the judgment, dated 6-12-1995 for enhancement of sentence awarded to respondents /appellants
3. Sher Zaman has also filed Appeal No,5 of 1996 against Abdul Aziz and three others under section 417 (2-A), Cr.P.C. Against the judgment, dated 6-12-1995 whereby respondent No,1 Abdul Aziz was acquitted under section 307/34, P.P.C. And respondents Nos.2 to 4 under sections 302/34, P.P.C. It has been prayed that the impugned judgment be modified and the accused-respondents be held vicariously liable under sections 302/307/34, P.P.C. And be awarded sentence accordingly. We propose to dispose of all the above mentioned appeals and revision through this order as all arise out of the same judgment.
4. On receipt of information that a dead body was lying in Civil Hospital, Haripur, Fazal Dad, A.S.-I. Of Police Station Haripur reached the hospital on 26-4-1984 where complainant Sher Zaman son of Kala Khan lodged the report that he alongwith Muhammad Iqbal, Nohman and Muhammad Zaman were grazing their cattle at the spot known as "Dally Da Chhar". Muhammad Zaman was collecting small pieces of wood when Aziz, Wali Muhammad, Ghulam Muhammad and Saida residents of Kangar appeared duly armed with rifles on the spot. On reaching the scene of occurrence Abdul Aziz abused Muhammad Iqbal and fired a shot at him, with which he was hit at left side ribs, fell on the spot and died. The complainant Sher Zaman shouted to prevent the accused from commission of offence, on which all the accused opened fire on him but he took shelter behind a stone and escaped. The occurrence was witnessed by Muhammad Zaman, Nohman and Bostan residents of Aam-Gah. Motive for the occurrence is dispute over Dhaka Rakh.
5. Challan of the case was put into the Court of learned Additional Sessions Judge, Abbottabad, the learned Additional Sessions Judge vide his judgment, dated 16-6-1991 convicted Abdul Aziz respondent No,1 under section 304(A), P.P.C. And acquitted respondents Nos.2 to 4 of the charges under sections 302/307/447/34, P.P.C. Abdul Aziz filed Criminal Appeal No,26 of 1991 whereas State also filed Criminal Appeal No,4 of 1992, Mehboob Khan filed Criminal Revision No,31 of 1991 against the judgment of learned Additional Sessions Judge, Abbottabad, dated 16-6-1991 in this Court. The appeal filed by the State was accepted vide order/judgment, dated 7-11-1994 and the impugned judgment of the learned Additional Sessions Judge, Abbottabad, dated 16-6-1991 was set aside and the case was remanded back to the learned trial Court for decision afresh after hearing of the learned counsel for the parties and keeping in view all the relevant evidence of the case.
6. The prosecution in order to prove its case examined as many as 10 P.Ws. Brief resume of the prosecution evidence is given below.
7. Dr. Noor Wahab Shah was examined as P.W.1. He had conducted the post-mortem on the deceased Muhammad Iqbal. He opined on external examination:--
(1) A fire-arm entrance wound 1/3" x 1/3" on the lower part and lateral side of chest. On internal examination he found:-- "Diaphragm injured in the left side, sma ll and large intestines were also injured. Chest walls on the left side were injured. Pleaurae left side injured. ' The left lung was also injured. In the opinion of the doctor the death was the result of shock and hemorrhage due to injury to the lung and intestines caused by fire-arm. The injury of the victim was sufficient in the ordinary course to cause death. Five copies of P.M. Exh.P.W.1/1 were prepared by him. The inquest report Exh.P.W.1/2 correctly bore his signature. He had seen the P.M. Report Exh.P.W.1/1 which was correct and bore his signature correctly. The injury sheet Exh.P.W.1/3 also correctly bore his signature and AS prepared by the police. The pictorial attached with the P.M. Report was also prepared by him and was correct. The blood-stained shirt bearing corresponding holes alongwith a bullet weighing 30 grams were handed over to the police. Probable time that elapsed between injury and death was about 15 to 20 minutes and between death and P.M. Was about 18/19 hours.
8. Ansar Khan, A.S.I. (P.W.2) had registered F.I.R. Exh.P.A./1 on receipt of Murasila Exh.P.A.
9. Khan Draz, Constable (P.W.3) guarded the dead body in mortuary at night and doctor after the P.M. Of deceased handed over shirt Exh.P.1, sealed in bottle bullet Exh.P.2., which were handed over by him to Ayub.
10. Mir Afzal, Patwari Halqa Beer was examined as P.W.4. He accompanied the Investigating Officer to the spot, prepared his report Exh.P.W.4/1, handed over Jamabandi of the place of occurrence Exh.P.W.4/2 and sketch of the spot Exh.P.W.4/3 copy of Wajibul Arz Exh.P.W.4/4 and part one of Wjibul Arz Exh.P.W.4/5 to Investigating Officer.
11. Ali Zaman (P.W.5) is marginal witness of recovery memo. Exh.P.W.5/1 vide which the Investigating Officer took into possession 3 empties of 7 MM (Exh.P.1) blood with the help of cotton (Exh.P.2) in his presence. He affirmed the memo. To be correctly bearing his thumb-impression.
12. Sher Zaman complainant was examined as P.W.6. He reproduced the contents of Murasila Exh.P.A. And admitted his thumb-impression to be correct. He also stated that the site plan Exh.P.W.10/1 was prepared at his instance and recoveries were effected in his presence.
13. Nohman eye-witness was examined as P.W.7 and Muhammad Zaman another eye-witness to the occurrence was examined as P.W.B. Fazal Dad, A.S.-I. (P.W.9) was on Gusht when he learnt about the dead body lying at Civil Hospital, Haripur. He proceeded to the spot and recorded the report of Sher Zaman in the shape of Murasila Exh.P.A. And sent the same to the Police Station for registration of the case. He also prepared inquest report Exh.P.W.1/2 and sent the dead body for P.M.
Examination. He had also prepared injury sheet Exh.P.W.1/3.
14. Abdul Aziz, Inspector CIA was examined as P.W.10. He had investigated the case, prepared site plan Exh.P.W.10/1, recovered blood with the help of cotton Exh.P.2, sealed it into parcel No,1 on the spot, recovered three empties of 7 MM Exh.P.1, sealed the same into parcel No,2. He also took into possession bundle of pieces of wood through recovery memo. Exh.P.W.5/1. He recorded the statements of witnesses under section 161, Cr.P.C. And got recorded the statements of Nohman, Bostan and Muhammad Zaman under section 164, Cr.P.C. He arrested the accused on 29-4-1986 and asked the Tehsildar through letter, dated 20-4-1986 to direct the Patwari Halqa to prepare Fard and Aks of the spot. He took into possession Fard and Aks vide recovery memo. Exhs.P.W.4/3 and 4/2. Since the initial investigation had been carried out by Fazal Dad, A.S.I., therefore, he took into possession from the said A.S.-I., P.M. Report Exh.P.W.1/1 and inquest report Exh.P.W.1/3. He also received report of F.S.L. About the blood-stained cotton and blood-stained clothes of the deceased and took the report, dated 5-5-1986 into possession vide Exh.P.W.10/2. He had kept the empties of 7 MM duly sealed in safe custody vide docket, dated 5-5-1986, corbon copy was placed on file as Exh.P.W.10/3 subject to the objection of the learned defence counsel. He handed over the copy of challan to S.H.O. For onward submission to the Court.
15. After conclusion of the evidence of the prosecution the statements of the accused were recorded under section 342, Cr.P.C. In which they professed innocence. None of the accused wished to be examined on oath or to produce evidence in their defence.
16. Mr. Abdullah Jan Mirza, Advocate, the learned counsel representing the appellants Abdul Aziz and others argued that all the witnesses are unanimous that there is a metalled road between Aam-Gah and Police Station. They could reach Police Station within one hour. The occurrence took place at 'Peshin Vela' (between 2 and 3 p.m.) on 26-4-1986 whereas the report was lodged at 22- 30 hours (10-30 p.m.). The complainant alongwith other persons, as per statement of Khan Draz Constable No,1043 P.W.3 had come to Police Station Haripur and conveyed the information about the death of deceased and Fazal Dad Khan, A.S.-I. Alongwith P.W.3 had reached hospital at evening time but still the report as mentioned above was lodged at 10-30 p.m. The delay in lodging the F.I.R.
Was due to deliberations and consultations.
17. It was also argued that the deceased had died on the spot as per F.I.R. But the dead body was not taken to the Police Station but instead was taken to the Civil Hospital. There is no explanation when the deceased had already died, then why the dead body was taken to hospital instead of taking the same to Police Station. The inquest report Exh.P.W.1/2 does not show the brief history of the case and where the dead body of deceased was found which gives this impression that the inquest report Exh.P.W.1/2 was prepared first and the case was registered thereafter. In column Nos.10 and 12 of the inquest report it has been mentioned, "Asla-Atisheen". Rifles have not been mentioned which also shows that the inquest report was prepared first. It was also argued that the occurrence had taken place on the day when the stay order granted by the Civil Court in favour of complainant party was vacated by learned Senior Civil Judge. The complainant party was not happy for the restoration of water supply and re-fixation of pipes. They did not allow the accused to restore the water supply. In the F.I.R. The actualmotive has been concealed which was in fact restoration of water supply but instead in the F.I.R. The motive is stated to be "litigation over "Dhaka- Rakh" although Mir Afzal, Patwari Halqa P.W.4 did not support this version of prosecution. Nohman P.W.7 and Bostan are not recorded as owners in the Shamilat Khasra No,1/8. Similarly, Iqbal deceased has no connection with Shamilat Khasra No,1/8, then how could they graze their cattle in the land they did not own and possess. Moreover, the litigation over the Dhaka-Rakh started in the year 1985 and no incident had taken place till the occurrence, therefore, the motive set up by prosecution is hazy and farfetched. The grazing of cattle has not been substantiated by any independent witness. All the P.Ws. Stated that they had shown their cattle to Investigating Officer that Abdul Aziz (P.W.10) I.O. Stated that no cattle was shown to him.
18. It was also argued that Sher Zaman complainant has been shown at point No,2 grazing his goats but in his statement in the Court he stated that he had no goats. Occurrence took place on 26-4-1986 but the site was inspected on 27-4-1986, still the Investigating Officer found the chunk of goats "Meenganay" in fresh condition.
19. It was also argued that the parents and brothers of the deceased did not come forward to depose that Iqbal had left for grazing goats for AamGah. Iqbal deceased is resident of Soha which is only 3 and a half miles away from the place of occurrence and there was a pasture in Soha then why he had come all the way from Soha to Aam-Gah for grazing his goats. There is no explanation available on the file about this fact as well as about his goats as to where the said goats were after the occurrence.
20. It was also argued that the site plan also does not support the case of prosecution. Iqbal deceased has been shown at point No,1 which is ravine. The accused were at points Nos.3 to 6. The injury is straight but the accused were at elevated place. The injury is not from above to downward.
The occurrence in fact did not take place in the manner alleged by the prosecution, as mentioned above the accused were shown at points Nos.3 to 6 but empties have been recovered from points Nos.8, 9 and 10. The distances between points Nos.4 to 8, 5 to 9 and 6 to 10 have not been disclosed in the site plan. The dead body of the deceased had been shown at point No,3 where from the blood was also collected through cotton. Accused Abdul Aziz has also been shown at the same place, i,e,, at point No,3. It has been mentioned in the site plan that the deceased was grazing his goats at point No,1. It has nowhere been explained as to how the deceased reached at point No,3 immediately from point No,1 and was done to death there. No blackening has been found around the wound which also suggests that the fire was not made from close range. The learned trial Court has not appreciated the evidence of the prosecution in its true perspective, therefore, the findings of the learned trial Court are based on misreading and non-reading of evidence. It was prayed that the appellants be acquitted of all the charges.
21. On the other hand, Mr. Mushtaq Ali Tahir Kheli, Advocate, the learned counsel representing the complainant argued that the prosecution has proved its case beyond any shadow of doubt, that was reason that the appellants/accused were convicted but the sentence awarded to them was not in accordance with law. The eye-witnesses and the complainant have fully supported the case of prosecution, empties of 7 MM were found from points Nos. 8, 9 and 10 and Ali Zaman and Aziz P.W.10 supported the recoveries. The empties were sent to fire-arms expert but no report of fire- arm is available on record for the reason that no rifle was recovered, therefore, the non-availability of fire-arms expert report would not damage the case of prosecution.
22. It was also argued that P.M. Report of deceased shows that death was caused due to fire-arm.
The complainant as well as three eye witnesses are unanimous that four accused persons had come with rifles and on arrival of accused altercation took place between Aziz and Iqbal deceased.
The motive is dispute between the tribes of Awan and Tanolis over Dhaka Rakh. The enmity is not between the individuals, therefore, wrong individual could not be named. The eye-witnesses did not give their statements due to any animous. They were independent eye-witnesses and were not interested witnesses. The medical evidence coupled with recovery of blood and empties from the spot corroborate the case of prosecution. The accused shared common intention and, therefore, were liable for conviction and deserved to be awarded maximum punishment/sentence under the law.
23. We have heard the learned counsel for the parties and perused the record.
24. So far as the argument of the learned counsel for the appellants (Criminal Appeal No,48 of 1995) that the F.I.R. Was lodged after due deliberations and consultations has a force in it. The occurrence allegedly took place at 'Pesheen Vela', i,e,, between 2 and 3 p.m. The distance between the place of occurrence and Police Station has been shown to be 26 Kilometres but there is a metalled road between the place of occurrence and the Police Station as admitted by all the P.Ws.
And the said distance could be covered within one hour. The village of the deceased also comes in the way. Neither the dead body of deceased was taken to his house nor to Police Station, though it has been mentioned in the F.I.R., that the deceased had died on the spot but it was taken to Civil Hospital, Haripur. No explanation worth the name has been given as to why the dead body was taken to hospital instead of police station by any of the P.Ws. It is also evidence that the complainant alongwith others had come to the P.S. And informed police officials about the occurrence and P.W.3 Khan Draz stated in cross-examination that the police authorities were informed by the complainant and he alongwith Fazal Dad, A.S.-I. Went to Civil Hospital in evening time but there is no explanation again as to why the report was lodged at 10-30 p.m. When the police officials also reached the hospital in evening time. All this shows that the delay occurred due to deliberations and consultations.
25. The argument of the learned counsel for the appellants that the actual motive has been suppressed by the prosecution. The motive put forward is hazzy and far-fetched has force in it. The civil litigation between the parties started in the year 1985 and it was on the day of occurrence that the stay order granted by the learned Civil Judge in favour of complainant party was vacated by him which annoyed the complainant party and they did not allow the accused to restore the water supply. This was the immediate cause of the occurrence but in the F.I.R. The motive is stated to be "litigation over Dhaka Rakh". Even this motive has not been proved successfully by the prosecution.
The prosecution examined Mir Afzal, Patwari Halqa Beer as P.W.4. This witness accompanied the Investigation Officer to the spot and prepared his report Exh.P.W.4/1, handed over Jarnabandi of the place of occurrence Exh.P.W.4/1 and sketch prepared by him was placed on record as Exh.P.W.4/3, copy of Wajibul Arz Exhs.P.W.4/4 and 4/5 was also exhibited, as per the statement of Patwari Halqa Nohman P.W.7, Bostan are not recorded as owners in the Shamilat Khasra No,1/8. Similarly, Iqbal deceased has no connection with Shamilat Khasra No,1/8. Iqbal deceased hailed from Soha village which is situated about 3 and half miles away from the place of occurrence. Soha village has its own pasture and it is not understandable as to why lqbal deceased had come all the way from Soha to the place of occurrence to graze his goats when pasture is available in his own village.
There is also no explanation as to what Nohman and Bostan were doing at Dhaka Rakh of which they are not the co-owners. The learned counsel for the complainant vehemently argued that there was a dispute between Tanoli Tribe and Awan Tribe over Dhaka Rakh but the prosecution could not prove as to whether the motive behind the occurrence was the vacation of stay by the Civil Court and re-connection of water supply by the deceased party or it was the result of the dispute of Dhaka Rakh or it was result of dispute between two rival Tribes i,e,, Tanolis and Awans, so in this case the motive is shrouded in mystery.
26. The site plan Exh.P.W.l0/1 also does not support the case of prosecution. Iqbal deceased has been shown at point No,1 which is a ravine, the accused have been shown at points Nos.3 to 6. The dead body of the deceased was found at points Nos.3 to 6. The dead body of the deceased was found at point No,3 where accused Abdul Aziz was shown present. There is no explanation as to how the dead body of the deceased was found at point No,3 when he was grazing his goats at point No,1 . The Investigating Officer had recovered blood through cotton from point No,3. This fact too shows that the dead body was found at point No,3. If Abdul Aziz and the deceased both were present at point No,3, then the fire allegedly made by Abdul Azizmust have been made from very close range but the medical evidence does not show that there was any blackening found around the wound on the person of deceased. Moreover, no empty was found from point No,3. However, the empties of 7 MM have been shown to have been recovered from points Nos.8, 9 and 10. The distances between points Nos.4 to 8 and 8, 9 and 10 have not been disclosed in the site plan. The occurrence took pace on 26-4-1987 at 'Pesheen Vela' but the site plan Exh.P.W.10/1 was prepared on the following day, i,e, on 27-4-1986. The Investigating Officer found the chunk of the goats "Meenganay' in fresh condition. This also shows that the note of the Investigating Officer in regard to the chunks of the goats is incorrect.
27. The Investigating Officer recovered three empties P.1 of 7 MM from the spot and took the same into possession vide recovery memo. Exh.P.W.5/1 and sealed the same into parcel there is an application on record Exh.P.W.10/3, dated -5-5-1986 whereby he sent the three empties sealed in parcel to fire-arm expert from safe custody but no report regarding the calibre of the empties or with regard to the fact that whether the three empties were fired at with one weapon or by different weapons is available on file, as there were four assailants. No description of the weapon is given in the F.I.R. It was only in the F.I.R. That the accused-appellants were duly armed with rifles but in the inquest report Exh.P.W.1/2, in columns Nos.10 and 12 only the words 'Atisheen Asla" has been mentioned. All this makes the case of prosecution doubtful.
28. The post-mortem report Exh.P.W.4/1 shows "a fire-arm entrance wound 1/3" x 1/3" on the lower part and lateral side of chest" whereas the fact remains that a rifle of .303 bore or that of 7MM invariably causes an inlet wound of 1/4" x 1/4".
29. The, above detailed discussion leads us to the conclusion firstly that there was substantial delay of about 8 hours in lodging the F.I.R. That had resulted in consultations and deliberations, in the efforts to cover up the lapses; secondly, the actual occurrence was unseen. Eye witnesses failed to show whether the deceased was present at point No,1 or at point No,3 where he was hit and fell down. The eye-witnesses stated that deceased was at point No,1 whereas the Investigating Officer, stated that he was at point No,3. Thirdly, there is no report regarding the calibre of the empties allegedly recovered from the spot or to verify as to whether the same was of one weapon or by different weapons; fourthly, the deceased has been shown present at point No,1 but his dead body was found at point No,3 where the accused Abdul Aziz was shown present. If the fire was allegedly made from close range then there should have been blackening around the wound which is not present in this case; fifthly, the size of injury 1/3" x 1/3" does not correspond with the 7 MM rifle allegedly used in the occurrence becausewith rifle of .303 bore or 7 MM the inletd of 1/4" x 1/4" is caused. The direction of injury is not from above to downward though deceased has been shown at point No,1 which is ravine and Abdul Aziz appellant has been shown at point No,3 which is on higher side; sixthly, the motive as set forth by the prosecution could not be proved and is shrouded in mystery.
30. As a sequel to our above discussion, we are of the firm view that the case of prosecution is full of doubts and contradictions. We, therefore, accept appeal Criminal Appeal No,48 of 1995 and acquit the appellants of the charges levelled against them. We also dismiss Criminal Appeal No,5 of 1996 and Criminal Revision No,2 of 1996 having no substance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.