' Appellants Muhammad Yar alias Kali and Muhammad Akram along with Muhammad Ameen and Muhammad Ashiq accused were tried for the murder of Muhammad Amir in case F.I.R No,226/ 1994 registered under section 302/34, P.P.0 at Police Station Sadar Depalpur by the learned Additional Sessions Judge, Depalpur, who vide judgment, dated 19-6-1997 while acquitting Muhammad Ameen and Muhammad Ashiq, convicted Muhammad Yar alias Kali and Muhammad Akram under section 302(b)/34, P.P.0 and sentenced them to imprisonment for life each and to pay a fine of Rs,20,000 each or in default whereof to undergo further R.I. For six months each. Both the appellants were also directed to pay Rs,20,000 each as compensation under section 544-A, CL P.C. To the legal heirs of the deceased or in default whereof to suffer six months' R.I. Each. Benefit of section 382-B Cr.P.C. Was also extended to the appellants.
2. Challenging their conviction and sentence both the appellants filed Crl. Appeal No, 351/1997 while Bashir Ahmad complainant filed Crl. Rev. No,300/1997 seeking enhancement of the sentence of Muhammad Yar and Muhammad Akram and calling in question the acquittal of Muhammad Ameen. Both these matters are being disposed of together by this judgment.
3. According to the F.I.R the prosecution case was that on 29-5-1994 one day prior to the occurrence the complainant had come from Basirpur to see his brother and other relatives at village Jodhpur Dakhli Qila Sora Singh. On 30-5-1994 at about 5-30 a.m. The complainant alongwith Ahmad Yar and Ghulam Muhammad proceeded towards the tubewell of Muhammad Din Bhatti in order to ask for water for irrigating the vegetable/crop. They were on foot on the katcha road leading to Tibbi Sadda Singh. When they reached near the graveyard on that road, his brother Muhammad Amir was ahead of them on a bicycle who was a milk vendor and was going for fetching the milk. There, Muhammad Yar, Muhammad Ameen and Muhammad Akram being armed with. 12 bore gums emerged from the maize crop. Muhammad Ameen raised lalkara stating that Muhammad Amir be done to death. Whereupon Muhammad Yar made a fire shot hitting Muhammad Amir-on his right arm. Second fire shot was made by Muhammad Akram with his gun which hit Muhammad Amir on his chest. As a result of which Muhammad Amir fell down from his bicycle. All the accused decamped from the place of occurrence alongwith their weapons of offence. Besides the complainant the occurrence was witnessed by Ghulam Ahmad and Ahmed Yar. They found Muhammad Amir having expired at the spot.
4. The motive for this occurrence was that Muhammad Amin had suspected the deceased having illicit relations with Rehmat Bibi wife of Muhammad Aslam son of Muhammad Ameen, accused.
5. On the day of occurrence matter was reported to the police by Bashir Ahmad complainant P.W.5 and upon his statement F.I.R Exh.P.0 was recorded by Muhammad Ashraf Inspector P.W.
12. Thereafter the police official proceeded to the spot and after inspecting the dead body prepared the inquest report Exh.P.K. And sent dead body to mortuary for the purpose of post- mortem examination. After inspecting the place of occurrence he prepared rough site plan Exh. P.L.
During the spot inspection he collected blood-stained earth and secured the same vide meno Exh.P.D. He also took into possession bicycle P.1, and milk-Pot P.2 from the place of occurrence vide memo. Exh.P.E. Three empties P.3/1-3 were also found lying near the place of occurrence and the same were taken into possession vide memo. Exh.P.F. After the post-mortem examination the last worn clothes of the deceased were produced before the Investigating Officer which were secured vide memo. Exh.P.H. On 8-6-1994 this witness arrested Muhammad Yar, Muhammad Akram appellants and Muhammad Ameen accused. On 21-6-1994 Muhammad Akram appellant while in police custody led to the recovery of 12 bore gun P.4 from his residential house and the same was taken into possession vide memo. Exh.P.G. On 22-6-1994 Muhammad Yar appellant while in police custody led to the recovery of gun. 12 bore P.9 from his residential house lying in an iron box and the same was taken into possession vide memo. Exh.P.N. Similarly on the same day Muhammad Ameen accused led to the recovery of .12 bore gun P.10 from his residential house lying under the cot which was taken into possession vide memo. Exh.P.O. The Investigating Officer also got prepared site plans Exh.P.B. And P.B/1 through Zafarullah Khan Patwari P.W.3 and after completion of investigation submitted the challan before the trial Court.
6. During the trial prosecution produced 12 witnesses to prove the charge against the appellants and their co-accused.
7. Nazir Ahmad P.W.1 identified the dead body of Muhammad Amir deceased.
8, Dr. Saghir Ahmad P.W.2 conducted the post-mortem examination on the dead body of Muhammad Amir and found the following injuries on his person.
(1) A fire-arm lacerated wound 4 c.m. x 3 c.m. On outer and lower part of right arms. Blackening was present around the wound. Margins of the wound were inverted (entry wound). Corresponding mark was present on the Kameez. A wad was recovered from the wound. Bone under the wound was fractured.
(2) A fire-arm lacerated wound 6 x 5 c.m. On inner side and lower part of right arm. Mergins of the wound was everted (exit wound of injury No,1)
(3) Four fire-arm lacerated wounds in area of 6 c.m. x 4 c.m. On outer and upper part of right chest, 14 c.m. Away from midline (entry wound) after exit from the injury No,2. One wound was measuring 3 c.m. x 3 c.m.
(4) Multiple fire-arm lacerated wound in an area of 9 c.m. x 8 c.m. On outer part of left chest, 4 c.m.
Away from left nipple. Margins of the wound were inverted. Blackening around the wound was present (entry wound).
(5) Multiple firearm lacerated wound in area of 15 c.m. x 14 c.m. On back and middle of both sides of chest. Margins of wound were everted (Exit wound of injury No,4). One wab and three pellets were recovered from the skin of back of chest.
' On dissection in chest four pellets were recovered from chest cavity. Right six and seven tips were fractured and left 7th rib was fractured. Right chest cavity was containing blood. Pluera was perforated, right and left lungs were ruptured in pericardial and heart left venderical was perforated. In blood vessel decending iota was perforated.
' During cross-examination it was stated that injuries were caused from a distance of three feet.
The deceased had taken food almost between four to five hours before his death. Injury No,1 was fired on the deceased when the assailant was on the right side of the deceased.
9. Zafar Ullah Khan Patwari P.W.3 prepared site plans Exhs.P.E and P.E/1.
10. Munawar Taj P.W.4 (H.C.) took the parcel of blood-stained earth to the office of Chemical Examiner and deposit the same intact.
11. Bashir Ahmad complainant P.W.5, (brother of the deceased) and Ahmad Yar P.W. 6,(uncle of the deceased) narrated about the ocular account and supported the prosecution case as set out in the F.I.R.
12. Muhammad Hussain F.C. P.W.7 took the dead body to the mortuary for postmortem examination and after the same produced last worn-clothes of the deceased before the Investigating Officer.
13. Niaz Ahmad H.C. P.W.8 handed over parcel containing blood-stained earth Exh.P.D. To Munawar Taj P.W.4 on 11-6-1994 for onward transmission to the office of Chemical Examiner.
14. Muhammad Mansha P.W.9 deposed that on the day of occurrence he heard the fire shot and immediately thereafter he saw Muhammad Ashiq accused coming from that side. Upon inquiry Muhammad Ashiq accused confessed that he had murdered Muhammad Amir and then he fled away.
15. Hussain Ali S.I./S.H.O. P.W.10 partly investigated this case. He arrested Muhammad Ashiq on 4-9- 1994 and got recovered gun P.8 from him which was taken into possession vide memo. Exh. P.I. On 8-9-1994 he produced Muhammad Ashiq accused before the Illaqa Magistrate who recorded the confessional statement of Muhammad Ashiq under section 164, Cr.P.C.
16. Mehmood-ul-Hassan Zia, A.C.P.W. 11 narrated that. Muhammad Ashiq accused was produced before him on 8-9-1994 and his - statement Exh.P.J.. Under section 164, Cr.P.C. Was recorded by him.
17. Muhammad Ashraf Inspector P.W. 12 conducted the investigation of this case as narrated in the earlier part of the judgment. During cross-examination this witness admitted that both the appellants and their co-accused Muhammad Ameen were found innocent during investigation as they were not present at the spot at the time of occurrence.
18. Learned P.P. Tendered in evidence report of Chemical Examiner Exh.P.P. And closed the prosecution case.
19. Learned trial Court also examined the appellants and their co-accused under section 342, Cr.P.C. Wherein they had denied their participation in the occurrence and pleaded innocence.
20. Learned trial Court after appraisal of evidence convicted and sentenced the appellants as narrated in the earlier part of the judgment.
21. Learned counsel for the appellants submitted that it was an unseen occurrence which took place in the dark hours of the night; the eye-witnesses were later on introduced to strengthen the prosecution case; that the ocular account is in direct conflict with the medical evidence which create doubt about the authenticity of the prosecution case; that the recovery evidence relied upon by the prosecution in the absence of report of Chemical Examiner would be of no value; that during the investigation the appellants were found innocent; that the eye-witnesses relied upon by the prosecution were not only related but also interested and statement of such like witnesses could not be relied upon in the absence of any corroborative piece of evidence. It was lastly argued that in the circumstances the appellants were entitled to get the benefit of doubt.
Conversely learned counsel for the State vehemently opposed the instant appeal.
22. I have heard the learned counsel for the parties and perused the record with their assistance.
23. The precise allegation against the appellants is that on 30-5-1994 at 5-30 a.m. They being armed with fire-arms upon the instigation of their co-accused Muhammad Amin fired at Muhammad Amir deceased as a result of which he died at the spot. In order to prove the charge against the appellants prosecution has mainly relied upon the statement of Bashir Ahmad P.W.5 (brother of the deceased) and Ahmad Yar P.W.6 (uncle of the deceased) and sought corroboration from the evidence of motive, recovery and medical reports.
24. In a murder case where question of life and death is involved qualms of conscience require a very close scrutiny of the evidence. A careful analysis of the evidence available on record shows that the same is not worth reliance for upholding the conviction of the appellants.
25. Firstly, during the spot inspection three crime empties were recovered from the spot and during the investigation Muhammad Akram appellant led to be the recovery of .12 bore gun P.4 whereas Muhammad Yar led to the recovery of gun P.9 but unfortunately these articles were never sent to the Forensic Science Laboratory for their comparison. In the absence of the report from the Forensic Science Laboratory this piece of evidence relied upon by the prosecution would be of no value.
26. Secondly, the motive for the occurrence as alleged was that Muhammad Ameen accused suspected illicit relations of the deceased with his daughter-in-law. Admittedly, no attempts were made by the Investigating Officer for collecting the evidence. In this regard, nor any witness except Bashir Ahmad P.W.5 deposed on this issue before the trial Court. During the cross-examination Bashir Ahmad P.W.5 admitted that nobody had complained to him with regard to the illicit intimacy of the deceased with Mst. Rehmat Bibi but he came to know about this of his own accord. The motive for this occurrence as set up by the prosecution is based upon the suspicion and in the circumstances learned trial Court has rightly disbelieved this part of the prosecution case.
27. Thirdly, the medical evidence is in direct conflict with the 'ocular account. Statedly appellants fired at the deceased from the distance of 16-1/2 feet. The site plan prepared at the pointation of the witnesses as well as the rough site plan prepared by the Investigating Officer at the time of spot inspection also indicate that the assailants fired at the deceased from the distance of 16-1/2 feet. The perusal of medico-legal report shows that the deceased had blackening around the wounds of entry and piece of wad was also recovered from the wound during post-mortem examination. Blackening around the wound can be observed only when the fire of gun is made from a distance of one to three feet (Modi's Text Book of Medical Jurisprudence and Toxicology, 21st revised edition page 220). Dr. Saghir Ahmad P.W.2 who conducted the post-mortem examination also stated that injuries were caused from a distance of within three feet.
' Similarly, according to the prosecution's own case Bashir Ahmad P.W.5 and Ahmad Yar P.W.6 had dinner with Muhammad Amir deceased at Maghrab time but according to the post-mortem report semi digested food was found in the stomach and according to the doctor the deceased had taken food four to five hours before death. The time between taking the meal by the deceased and the death if calculated, same would be about 11/12 p.m. In this view of the matter, the time of occurrence calculated mathematically is in direct conflict with the time of occurrence narrated by the eyewitnesses.
'As stated by Bashir Ahmad P.W.5 and Ahmad Yar P.W.6 the assailants made fires from the right side of the deceased but according to the medico-legal report injury No,4 was on the left side of the deceased and there is no explanation by the prosecution on this aspect.
28. Fourthly, both the eye-witnesses relied upon by the prosecution were closely related to the deceased and were not the residents of the area where the occurrence took place. Admittedly, Bashir Ahmad P.W.5 was the resident of an area which was about 10/12 miles from the place of occurrence. Similarly Ahmad Yar P.W.6 was the resident of the area about 2/3 kilometers from the place of occurrence. Statedly, both these witnesses were going together towards the tubewell of Muhammad Din Bhatti in order to ask from him for water for irrigating the vegetable crop when by chance the deceased crossed them while riding on a bicycle. The evidence of eye-witnesses being closely related to the deceased and chance witnesses needs strong corroboration for basing reliance to uphold the conviction. Unfortunately, in the present case no corroborative piece of evidence worth reliance is available on the file.
29. Fifthly, the file of this case reveals that Muhammad Ashiq son of Muhammad Amin was also arraigned as accused in this case, as he confessed his guilt of committing the murder of Muhammad Amir before Muhammad Mansha P.W.9 as well as before Mehmood-ul-Hassan Zia A.C. P.W.11 who recorded his statement under section 164, Cr.P.C. During investigation Muhammad Ashiq accused was also challaned with the appellants.
30. Sixthly, during the investigation as admitted by Muhammad Ashraf Inspector P.W.12 the appellant and their co-accused Muhammad Amin were found innocent as they were not present at the spot at the time of occurrence. No doubt the opinion expressed by the police is not a proof of the innocence or guilt of the accused yet the factum of impact of such an information cannot be thrown away to wind altogether. This view finds support from the observations made by their lordships in case of Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ 1607 and Ashiq Ali v. The State 1996 M LD 1484 as well as the judgment passed in Crl. Appeal No,549/1998 by this Court on 23- 5-2001.
31. The upshot of the above discussion is that this was an unseen occurrence which took place during the dark hours of the night and in the circumstances the appellants are entitled to get the benefit of doubt. Accordingly, this appeal is allowed, the, conviction and sentence of the appellants are set aside and they are acquitted of the charge. They shall be released, forthwith, if not required in any other case.
32.. For the reasons discussed above, Crl.. Rev. 300/1997 filed by Bashir Ahmad complainant seeking enhancement of the appellants and calling in question the acquittal of Muhammad Ameen also stands dismissed.