1. ' The above named appellant has filed this Criminal Acquittal Appeal against the respondent No,1.
2. Who has been acquitted vide judgment, dated 19-8-2000, passed by learned Additional Sessions Judge-II, West, Karachi in Sessions Case No,151 of 1994 giving benefit of doubt to accused Muhammad Amin under section 265-H, Cr.P.C. The appellant has preferred this appeal with a prayer that the judgment passed by the trial Court be set aside and above named respondent No,1 be convicted under section 302/34, P.P.C.
3. ' It is submitted by the learned counsel for the appellant that the respondent No,1, namely, Muhammad Amin alongwith absconding accused Noor Muhammad were sent up to stand their trial under section 302 read with section 34, P.P.C. According to F.I.R. On 24-3-1994 at about 8-00 a.m. Deceased Ghulam Abbas son of Rehmat Ali alongwith P.W. Muhammad Hussain left the house for getting pension papers of complainant Rehmat Ali corrected. It was about 8-30 a.m. When P.W.
4. Muhammad Hussain came back and informed the complainant that near Ali Imambargah, Qasba Colony, Karachi accused Muhammad Amin and his father Noor Muhammad committed Qatl-i- Amd of his son Ghulam Abbas by firing upon him and fled away. Complainant reached at the place of Vardat and found the dead body of his son lying there. Accused Muhammad Amin is son- in-law of complainant and there was dispute between accused Muhammad Amin and his wife, due to which Qatl-i-Amd of Ghulam Abbas was committed by Muhammad Amir and his father Noor Muhammad. Such F.I.R. Was lodged by complainant Rehmat Ali at Police Station, Peerabad on 24-3-1994 at 9-15 a.m. After completing investigation accused named above was challaned as mentioned above.
5. ' N.B.Ws. Were issued against co-accused Noor Muhammad, which returned unexecuted for number of times. Ultimately, the case of accused Muhammad Amin was bifurcated by my learned Predecessor vide order, dated 2-9-1997 and the case of absconding accused was ordered to proceed under section 512, Cr.P.C.
6. ' Formal charge was framed against accused Muhammad Amin under section 302 read with section 34, P.P.C. To which he pleaded not guilty and claimed to be tried.
7. ' Prosecution examined P.W. Muhammad Javed vide Exh.5. Complainant Rehmat Ali was examined vide Exh.6 who produced F.I.R. Vide Exh,6/A, mashirnama of dead body and inquest report vide Exh.6/B receipt of dead body vide Exh.6/C and mashirnama of vardat vide Exh.6/D P.W. Naseem Akhtar was examined vide Exh.7. P.W. Waris Ali was examined vide Exh.8, who produced mashirnama of arrest and mashirnama of recovery of pistol vide Exhs.8/A and 8/B P.W. Aamar Javed was examined vide Exh.9. P.W. Ahmed Khan was examined vide Exh.10 P.W. Muhammad Abdul Haleem Farooqui was examined vide Exh.11. P,W. Muhammad Rafique was examined vide Exh.13. Inspector Muhammad Khan was examined vide Exh.14. Dr. Aftab Aziz was examined vide Exh.15, who produced post-mortem report of the deceased vide Exh. 15/A. The side of the prosecution was closed by learned D,D.A. Vide statement Exh .19.
8. ' Statement of accused under section 342, Cr.P.C. Was recorded vide Exh.20, in which he denied all the allegations levelled against him. Neither he examined any witness in defence, nor he examined himself on oath in disproof of the charge, though asked for vide Exh.21.
9. ' The points for determination are:---
(1) Whether Ghulam Abbas son of Rehmat Ali died unnatural death?
(2) Whether present accused Muhammad Amin committed Qatl-I-Amd of Ghulam Abbas son of Rehmat Ali?
(3) What offence is proved against the accused?
10. ' The learned trial Court after hearing the learned counsel for the parties answered Point No,1 in affirmative and on Point No,2 as doubtful whereas Point No,3 held that no offence is proved against the accused beyond reasonable doubt.
11. ' With regard to the cause of death P.W. Dr. Aftab Azizi (Exh.15) was examined, who deposed that on 24-3-1994 he was posted as Assistant Police Surgeon at Abbasi Shaheed Hospital, Karachi. On that day at about 11 a.m. He received dead body of Ghulam Abbas son of Rehmat Ali from Peerabad Police Station for post-mortem examination. He further deposed that he started the post-mortem at 2-00 p.m. And finished the same at 3-00 p.m. On the same day. He further deposed that on external examination he found the following injuries on the person of the deceased:
(1) Gun shot injury entry wound c.m. In diameter circular in shape lying over front of left side chest just close on medial side of left nipple charin was present around the wound. There was corresponding hole with blackening over the shirt.
(2) There exist wounds about 1-1/2 x 1 c.m. Each lying over front of left side chest in the middle part in an area of nine 9 c.m. x 6 c.m. Close to mid line.
(3) Gun shot entry wound 1 c.m. x 3/4 c.m. In size circular in shape lying over front of right side chest 7.5 c.m. Below the nipple. No charing was present.
(4) Three gun shot wounds of entry about 2/3 c.m in diameter each living over back of right side chest, two at the middle part and one at the lower part in the tenth intercostal space. No charring was present.
(5) Two gun shot exit wounds lying side by side one 1 c.m. x 1-1-/2 each at posterior axillary line left side.
(6) Gun shot deep gutter wound 4 c.m. x 3 c.m. Lying over in the middle left forearm outer aspect with charring. There was fracture of radius bone.
(7) Gun shot entry wound 1/2 c.m. In diameter, circular in shape lying over lower part of right forearm on external surface with charring around wound.
(8) Gun shot exit wound 1 c.m. x 3/4 c.m. Lying over lower part of right forearm on flexer surface.
(9) Crush irregular wounds 1.5 c.m. x 1 c.m. Lying over terminal part of left little finger with climinal fracture of terminal phalanx.
12. ' He further deposed that on internal examination he found that there was fracture of sternum at the level of 3rd rib. He further deposed that there was fracture of 3rd rib of the left side and 5th and 10th ribs on the right side. He further deposed that few small metallic pieces were recovered from chest cavity. He further deposed that the case of death was excessive shock and hemorrhage due to extensive internal bleeding which led to cardio respiratory failure. The medical officer was not cross-examined by learned counsel for the accused on the point of cause of death, hence he came to the conclusion that prosecution has proved beyond reasonable doubt that Ghulam Abbas son of Rehmat Ali died unnatural death.
13. ' It is urged by the learned counsel for the appellant that learned trial Court while passing the judgment has wrongly concluded that the case against respondent could not prove by the prosecution but on the contrary the prosecution has fully established their case against the respondent beyond any reasonable doubt. The impugned judgment is liable to be set aside as it is based on misappreciation of facts as well as misreading of the evidence on record, as such the respondent is liable to be convicted under section 302/34, P.P.C.
14. ' Mr. Qazi Wali Muhammad, learned counsel for the State, has supported the judgment passed by the trial Court as the prosecution has not brought any tangible evidence to prove the guilt of accused/respondent beyond reasonable doubt ultimately the benefit of doubt was given to the accused and he has rightly been acquitted by the trial Court.
15. ' The trial Court while deciding the case has observed as under:-- "According to F.I.R., complainant was informed by P.W. (Muhammad Hussain) that accused Muhammad Amin and his father Noor Muhammad committed Qatl-i-Amd of his son Ghulam Abbas near Ali Imambargah, Qasba Colony, P.W. Muhammad Hussain has not been examined by the prosecution, as he is not traceable. Even a proclamation was issued against him by the Court.
16. The evidence of complainant Rehmat Ali and P.W. Naseem Akhtar is hearsay evidence, as they were informed by P.W. Muhammad Hussain about the incident. P.W. Muhammad Javed and Qamar Javed only saw the dead body at the place of wardat and they did not see anybody firing upon the deceased. P.W. Waris Ali is the mashir of recovery and arrest. P.W. Ahmed Khan Exh.10 deposed that on the day of incident at about 7-30 or 8-00 a.m. He saw two persons running in front of his shop.
17. He further deposed that one person was old, who had a brief case and another had pistol in his hand. He further deposed that those persons turned into street, some boys came running behind those persons and told him that two persons had murdered some body. He further deposed that he took his Suzuki Pick-up and followed those persons, who boarded in a taxi. He further deposed that he chased the taxi upto Pakistan Quarters, which disappeared and he came back. He further deposed that he saw present accused running with pistol in his hand, while other accused with white beard is not present in Court.
18. ' In cross-examination, he deposed that he saw these persons running from their back. He further deposed that no identification parade was held.
19. ' P.W. Abdul Haleem Farooqui Exh.11 deposed that on the day of incident at about 8-15 p.m. He had gone to drop his niece to the school. He further deposed that while he was running and reached at Mula building, he saw three persons standing there, who were talking with each other. He further deposed that one of those persons was present accused, another was his father and third person's name was Muhammad Hussain, which he came to know subsequently. He further deposed that in the meantime a boy came at the distance of 20 paces, Muhammad Hussain came to the boy, put his hand at the shoulder of the boy and brought him towards two persons. He further deposed that present accused and his father attacked on the boy, he tried to save himself, but present accused started firing upon him at a distance of 100 paces. He further deposed that he went running, but accused and his father fled away' in the taxi. He further deposed that he informed the police on telephone. He identified the accused present in Court to be same.
20. ' In cross-examination, he deposed that accused had a T.T. Pistol, which he tired upon deceased.
21. He further deposed that when they followed culprits, all the three persons went in the taxi, but Muhammad Hussain talked that he came there after call of telephone.
22. ' According to F.I.R. And the version of the complainant deceased Ghulam Abbas and Muhammad Hussain both left the house together for correction of the papers of pension of the complainant.
23. P.W. Muhammad Abdul Haleem Farooqui has come with different version by deposing that accused Muhammad Amin, his father and P.W. Muhammad Hussain were talking to each other, when deceased came there at a distance of 20 paces. Muhammad Hussain went to the deceased, put his arm on the shoulder of deceased Ghulam Abbas and brought him near, when accused fired from T.T. Pistol upon the deceased. This witnesses further deposed in cross-examination that all three persons fled away in a taxi and Muhammad Hussain returned back later on.
24. ' According to P.W. Ahmed Khan only 2 persons fled away in the taxi, but P.W. Muhammad Abdul Haleem Farooqui deposed that three persons fled away in the taxi, P.W. Ahmed Khan deposed that accused was armed with pistol, while P.W. Muhammad Abdul Haleem deposed that accused was armed with T.T. Pistol. The evidence of the medical officer shows that there were gunshots injuries on the person of the deceased and some small metallic pieces were recovered from his body.
25. Thus, medical evidence has contradicted ocular evidence of two witnesses namely Ahmed Khan and Muhammad Abdul Haleem Farooqui. According to whom, the accused was armed with T.T.
26. Pistol. None of the prosecution witnesses deposed if accused was armed with a gun of 12 bore or pistol from which he fired a cartridge. Prosecution has shown recovery of 30 bore pistol from the possession of the accused, which is his licensed pistol. According to post-mortem report bullets were recovered from the body of the deceased, which suggest that a cartridge was fired upon deceased which can only be fired from a gun of 12 bore or pistol of 12 bore, commonly known as country made pistol. The star prosecution witness Muhammad Hussain has not been examined.
27. Under the circumstances of the case, I have come to the conclusion that prosecution has failed to prove beyond reasonable doubt if present accused has committed Qatl-i-Amd of Ghulam Abbas."
28. ' As the star witness, namely, Muhammad Hussain has witnessed the incident and commission of the incident was taken place in his presence and thereafter he informed the complainant that accused Muhammad Amin and his father Noor Muhammad have committed Qatl-i-Amd of deceased Ghulam-Abbas near Ali Imam Bargah, Qasba Colony. As the main witness Muhammad Hussain has not been examined by the prosecution as he was not traceable even a proclamation was issued against him by the Court. The evidence of P.W. Rehmat Ali (complainant) and P.W.
29. Naseem Akhtar is hearsay evidence as they were informed by P,W, Muhammad Hussain about the incident. The other witnesses are formal, therefore, it is not necessary to consider their evidence, ' The finding of the trial Court in respect of point No,2, the prosecution has failed to prove beyond reasonable doubt that respondent/accused has committed any offence. In view of this there is no illegality in the impugned judgment and there are no reasons to interfere with the said judgment and respondent was rightly acquitted from the said charges.
30. 'This Criminal Acquittal Appeal was dismissed in limmine by short order, dated 11-4-2001 and above are the reasons for the same.