' Appellant Nazir son of Dost Muhammad alongwith Ehsan, Muhammad Aslam, Zafar lqbal and Saif son of Muhammad Nazir (absconder) was tried in a private complaint titled Muhammad Ilyas v.
Nazir etc. Under sections 302/324/109/34, P.P.C. For the murder of Nasrullah deceased by the Additional Sessions Judge, Sargodha, who vide judgment, dated 4-6-1998 while acquitting Muhammad Aslam, Ehsan and Zafar lqbal and separating the case of Saifullah (absconder), convicted Nazir appellant under section 302(c), P.P.C. And sentenced him to ten years' R.I. And to pay Rs,10,000 as compensation as required under section 544-A, Cr.P.C.
2. Challenging his conviction and sentence the appellant tiled the instant appeal which is being disposed of by this judgment.
3. Case F.I.R. No,117 of 1993, dated 30-11-1993 was registered under sections 302/324/109/34, P.P.C. At Police Station Bhabara against the appellant and his co-accused. During the investigation this case having been found false was got cancelled.
4. The complainant being not satisfied with the investigation filed a private complaint against the appellant and his co-accused with regard to the same occurrence as narrated in the said F.I.R. The brief facts as contained in the complaint are that Muhammad Nazir and Saif accused were father and son whereas Zafar lqbal was Nazir appellant's cousin and Ehsan and Aslam were partymen of the appellant. The complainant was resident of Jasowal and was a cultivator. On 30-11-1993 Nasrullah Khan, his brother Baaqri son of Khushi Muhammad and Nazir son of Ahmad Khan, all Ranjha by Caste were cultivating their land within the area of village Bhabara when Saif son of Nazir, Nazir son of Dost Muhammad and Muhammad Aslam being armed with rifles and Ehsan armed with gun came there and brandshing their weapons in the air raised Lalkara that they would teach a lesson for cultivating the land. Saif accused fired with his rifle hitting Nasrullah on the left side of his forehead who fell down and succumbed to the injury at the spot. All the accused with the intention to commit Qatal-e-Amd of complainant party also fired repeatedly towards them.
They saved themselves by lying on the ground. This occurrence was seen by the complainant, Baaqri son of Khushi Muhammad, Nazir son of Ahmad Khan. Upon firing by the accused person other people of the vicinity were also attracted and on seeing them accused decamped from the scene of crime.
4. Motive for this occurrence as narrated in the complaint was that the accused party wanted to take forcibly possession of land which was under the cultivation of the complainant party. Statedly, on the abetment of one Zafar lqbal, abovesaid accused in furtherance of their common object committed this offence. It was further stated in the complaint that Umar Hayat son of Yars and Ahmad son of Rehmat Caste Ranjha resident of Jasowal told the complainant that on 30-11-1993 in the Chamber of Zafar lqbal accused in District Court Mandi Baha-ud-Din a conspiracy was hatched to eliminate Nasrullah. Zafar Iqbal said to them that he would pursue the case.
5. That after the occurrence case was registered at the police station but the police under the influence of local M.P.A. Did not conduct the investigation properly and the complainant was constrained to file this complaint.
5. Learned trial Court after recording the preliminary evidence summoned the appellant and his co-accused to face the trial. During the trial prosecution produced seven witnesses. Muhammad Ilyas complainant (P.W.1), Baaqri son of Khushi Muhammad P.W.2 and Nazir P.W.3 being eye- witnesses of this occurrence narrated the circumstances under which this occurrence took place and had supported the prosecution case Muhammad Nazir P.W.3 also identified the dead body of Nasrullah deceased:
6. Dr. Sarfraz Ahmad P.W.4 conducted the post-mortem examination on the dead body of Nasrullah deceased and observed the following injuries thereon:--
(1) A fire-arm wound 1/2 x 1/2 c.m. With black margin and inverted going deep on the left side of forehead about 1 c.m. From left eyebrow near outer angle.
(2) An exit wound 5 x 3 c.m. On the back of head near the neck (lower part of the occipital) with everted margin and irregular margin. Brain matter was coming out of the wound and communicating with injury No,1.
' In the opinion of the doctor, death occurred due to shock and haemorrhage caused by injury No,1 which was sufficient to cause death in the ordinary course of nature.
7. Iffat lqbal Bhatti P.W.5 prepared the site plans Exhs.P.D. And P.D./1 Muhammad Anwar, Head constable P.W.6 brought the original F.I.R. Register of Police Station Bhabara for the year 1993 to prove the registration of case F.I.R. No,117 of 1993, dated 30-11-1993 at the police station which is Exh.P.W.6/A. Naseer Hussain constable P.W.7 took the dead body for post-mortem examination and after the same produced the last-worn clothes of the deceased before the Investigating Officer of case F.I.R. No,117 of 1993. The complainant tendered in evidence reports of Chemical Examiner Exh.P.E. And that of Serologist Exh.P.F. And closed the case.
8. Learned trial Court also examined Ashiq Hussain, Patwari, C.W.1 who after going through Khasra Girdawari for the years 1991 to 1995 of village Jasowal made the statement that there was no entry of disputed possession/Kashat amongst the parties and that in Khasra Nos.2425, 2426, 2427, 2428, 2429, 2430, 2431, 2434, 2435, 2436, 2437, 2438, 2439 and 2440 possession of Saif accused (absconder) from 31-10-1991 to March, 1994 had been recorded. This witness further submitted that the land in the Khewat was gifted to Saif by Mst. Fatima vide Mutation No,1073 and Mst. Rajan gifted out her entire land in this Khewat to Nazir Ahmad appellant.
9. Learned trial Court also examined the appellant and his co-accused under section 342, Cr.P.C.
Wherein he and his co-accused denied their participation in occurrence and pleaded innocence.
Learned trial Court also examined two defence witnesses namely Manzoor Ahmad Patwari D.W.1 who during investigation of case F .1. R . No,117, dated 30-11-1993 prepared site plan Exh.D.W.1/A.
Karim Nawaz Khan, D.S.P. Was examined as D.W.2 who investigated the case and prepared report under section 173, Cr.P.C. i.e, Exh.D.W.2/A. According to his investigation accused named in the F.I.R.
Were found innocent.
10. Nazir appellant also produced in defence attested copies of F.I.R. Nos.148 of 1993, Exh.D.E., 1/87 Exh.D.F. 38 of 1987 Exh.D.G. And 50 of 1993 Exh.D.H.
11. Learned trial Court after appraisal of evidence available on record vide judgment, dated 4-6- 1998 convicted and sentenced the appellant as narrated in the earlier part of the judgment .
12. Learned counsel for the appellant submitted that the appellant was implicated in this case falsely because of his previous enmity with the complainant party; the police case was investigated by five agencies and the same was found false against the appellant and his other co-accused and the same was recommended for its cancellation. It was further submitted that no doubt the Courts are not bound by the finding of the police but the same cannot be brushed aside and some weight must be given to the same. In support of the contentions, learned counsel placed reliance on Muhammad Naeem alias Gogi and others v. The State 1990 PCr.LJ 1607, Zulqarnain v.
The State PLD 1994 FSC 34 and Ashiq Ali v. The State 1996 M LD 1484; that there was a directed conflict between the medical evidence and the ocular account; that the appellant did not cause any injury to the deceased; that all the witnesses were closely related and inimical towards the accused party and statements of such witnesses would be of no value in the absence of any corroborative piece of evidence; that the prosecution case qua Muhammad Aslam and Ehsan co- accused of the appellant was disbelieved by the trial Court as such the same evidence could not be relied upon against the appellant without any strong corroborative piece of evidence. It was lastly argued that in the circumstances of the case the appellant was entitled to get the benefit of doubt. Learned counsel for the State vehemently opposed the instant appeal.
13. Heard. File pursed.
14. The only allegation against the appellant is that of raising Lalkara and making ineffective firing alongwith his other co-accused namely Aslam and Ehsan who have been acquitted by the trial Court. The main role has been attributed to Saif accused who being armed with rifle caused injury to Nasrullah deceased on his forehead as a result of which he died, at the spot. This Saif accused is absconder and the case to his extent has been separated by the trial Court. In order to prove the charge against the appellant and his co-accused prosecution has mainly relied upon the statement of Muhammad Ilyas P.W.1, Baaqri P.W.2 and Muhammad Nazir P.W.3. Admittedly, all the three witnesses are closely related to the deceased and it is established from the record that they had deep-rooted enmity with the appellant in the shape of criminal and civil cases. Statements of these witnesses have been disbelieved by the trial Court qua Ehsan and Muhammad Aslam co- accused of the appellant who, according to the prosecution's own case, played the same role during the occurrence. In this view of the matter for the safer administration of justice one must look for corroborative piece of evidence to rely upon the statements of these witnesses. This is in line with the law laid down by the august Supreme Court as well as this Court in Atta Muhammad and another v. The State 1995 SCM R 599, Ashiq Ali v. The State 1996 M LD 1484, Muhammad Riaz v.
The State 1996 PCr.LJ 150. In the present case no weapon of crime was recovered from the appellant nor was any empty found lying at the spot to show that the weapon allegedly carried by the appellant was used during this occurrence. According to the evidence available on record at the time the site plan was got prepared through Manzoor Ahmad Patwari, the distance of making fire as narrated by the witnesses was 393 feet, whereas according to the police investigation this distance was 300 feet. The statement of doctor who conducted post-mortem examination belies the story of prosecution on this aspect of the case. According to him the fire shot was made from a distance 1 to 10 feet as there was blackening around the wound. Blackening can only appear around the wound if the tire of rifle is made from a close range. In these circumstances I am of the view that the medical evidence does not lend any corroboration to the prosecution. Instead it contradicts its.
15. According to the prosecution's own case the land in dispute was in the possession of the complainant, party but there is no documentary proof on the file in support of the prosecution stand. Ashiq Hussain Patwari C.W.1 after going through the Revenue Record of village Jasowal stated that in the Khasra Girdawri for the years 1991 to 1995 there was no entry of disputed possession Kashat amongst the parties. The area where occurrence took place had been recorded as in possession of Saif accused from 31-10-1991 to March, 1994. He further admitted that said land was owned by Sardara and that this land was gifted out to Nazir Ahmad appellant by Rajan (widow of Sardara) as well as Mst. Fatima Bibi gifted out her entire land in this Khewat to Saif accused vide Mutation No,1073. Muhammad Ilyas complainant P.W.1 had admitted that after the death of Sardara, his daughter Mst. Fatima got married with Saif accused while his widow Mst. Rajan contracted second marriage with Nazir appellant. In this view of the matter it would be difficult to say that the complainant party was in possession of the land in dispute and the story of prosecution stands negated on this score.
16. After registration of case F.I.R. No,117 of 1993 the matter was investigated by many agencies and the case against the appellant and others was found false. Karim Nawaz Khan D.S.P. D.W.2 prepared final report under section 173, Cr.P.C. i.e, Exh.D.W.2/A, declaring all the accused persons innocent and recommended for closing the investigation as untraced case. No doubt, the opinion expressed by the police has no proof of innocence or guilt of accused yet the factum of impact of such an opinion cannot be thrown away to wind altogether. In forming this view I find support from the observations made by their Lordships in the case of Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ 1607 and Ashiq Ali v. The State 1996 M LD 1484.
18. The upshot of the discussion is that it would be extremely unsafe to rely upon interested and inimical eye-witnesses. Therefore, giving the benefit of doubt, I accept the instant appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He is on bail, his bail bonds stand cancelled and sureties are discharged.