' This judgment will dispose of Criminal Appeal No,713 of 1998 and Criminal Revision No,339 of 1998 as both arise out of common judgment.
2. The judgment dated 16-6-1998 passed by Malik Nazir Hussain Awan, learned Sessions Judge, Sargodha, has been assailed through this appeal whereby Khaliq Dad alias Dad appellant was convicted under section 302(b), P.P.C. And sentenced him to undergo imprisonment for life. He was also convicted under section 324, P.P.C. For causing injuries to Nazar Muhammad complainant, P.W.11, Muhammad Afzal as given up P.W. And was sentenced to 10 years' R.I. On each count with a fine of Rs,30,000 on each count and in default to undergo R.I. For five years. The appellant was also ordered to pay Rs,20,000 as compensation to be paid to the legal heirs of the deceased Altaf Hussain and in default to suffer six months' imprisonment.
3. The prosecution case, in brief, as revealed from the statement of Nazar Muhammad P.W. 11 is that he alongwith Munawar deceased and Muhammad Afzal injured P.W. Were working in the field by side of road in village Kotmomin. Altaf Hussain deceased i,e, complainant's son-in-law was picking vegetable on the eastern side of the road on 9-10-1996. It was about 11-30 forenoon when Nawazish Ali armed with .12 bore DBBL Gun, Khalid Dad appellant empty-handed and Khizar Hayat acquitted co-accused empty-handed came from northern side on motorcycle. They parked the motorcycle on the side. Nawazish accused tsince dead) raised Lalkara that he had come to avenge the death of his brother Khizar Hayat caught hold of Munawar Hussain on which Nawazish fired a shot from his gun which hit left upper arm and then his chest. Munawar Hussain succumbed to the injuries at the spot. Altaf Hussain (deceased) and Muhammad Afzal injured P.W. Reached the place of incident. Altaf Hussain gave a sickle blow on the neck of Nawazish Ali who got injured and gun fell down from his hand. Khalid Dad appellant picked up the gun and fired a shot at Altaf Hussain which hit his abdomen and also hit right leg of Muhammad Afzal. Altaf Hussain died at the spot.
Complainant Nazar Muhammad alongwith his son Mahmood and Anwar witnessed the occurrence. Nawazish who had been injured exhorted his co-accused to kill them as well. Khalid Dad inflicted a Butt blow on the face of the complainant. In his defence, the complainant and companions gave Sota blows and sickle blows to Nawazish Ali who also succumbed to the injuries at the spot. Crime weapons i,e, gun and motorcycle were deserted by the accused-persons at the spot.
4. The motive was alleged to be that about 10/12 years back brother of Nawazish deceased- accused had been killed as he had been trampled by the tractor of the complainant party.
5. The complainant lodged F.I.R. Exh.P.L at Police Station Kotmomin, District Sargodha, which was recorded by Khadim Hussain, Inspector/S.H.O. P.W.13. After recording the F.I.R., the Inspector/S.H.O.
Proceeded to the place of occurrence. He conducted usual investigation, took into possession the gun P.11 alongwith bandoleer P.12, licence P.15 and four cartridges P.12/1-4 vide memos. Exhs.P.M. And P.N. Two empties P.16/1-2 were taken into possession from place of occurrence vide memo. Exh.P.S. Sickle was also secured vide memo. Exh.P.T. Motorcycle was taken into possession through memo.
Exh.P.U. On completion of investigation, two accused persons, namely, Khizar Hayat and Khalid Dad were sent up to face trial in the Court of leatned Sessions Judge, Sargodha and third co-accused Nawazish Ali, as noted above, was killed during the incident.
6. The prosecution in support of its case examined 13 witnesses and apart from the oral evidence, the reports from Chemical Examiner Exhs.P.V. And P.X. And report from Forensic Science Laboratory Exh.P.W. Were also tendered in evidence. Amongst the prosecution evidence, Nazar Muhammad P.W.11 and Muhammad Anwar P.W.12 furnished the eye-witness count of the occurrence. Nazar Muhammad is an injured witness and he is father of Munawar Hussain and father-in-law of Altaf Hussain deceased. His presence at the place of occurrence stands established as he received injuries during the incident. He reiterated the statement already made by him in the F.I.R. Exh.P.L.
Muhammad Anwar P.W.12 also made statement in line with the statement of Nazar Muhammad on all material points.
7. Dr. Amjad Iqbal was examined as P.W.B. He conducted the post-mortem examination of Altaf Hussain aged about 40/45 years and noted the following injuries on his person:--
(1) Wound of entry going in 3-1/2 x 3 c.m. With inverted margins on front and lower part of abdomen, 4 c.m. Left and above to the centre of public joint. Burning and blackening was present around the margins.
(2) Wound of exit 3/4 x 1/2 c.m. With everted margins on the postero-lateral aspect of middle part of left buttock.
' Injuries were anti-mortem, caused by fire-arm and were sufficient to cause death in the ordinary course of nature.
' He also conducted the post-mortem examination of Munawar Hussain aged about 27/28 years and observed the following injuries on his person:--
(1) A wound of entry going in 9 x 4 c.m. With inverted margins on front and middle part of left upper arm. Burning and blackening was present around the margins. There was tearing of skin and underneath muscles.
(2) Wound of exit 8 x 5 c.m. With everted margins on the medial and middle apart of left upper arm.
(3) Nine wounds of entry going in 3/4 x 3/4 c.m. Each with inverted margins on the lateral side of left chest in the line of injuries Nos.1 and 2, 4 c.m. Below anterior axillary, fold in area of 7 x 6 c.m.
Burning was present around the margins.
(4) Six wounds of exit 3/4 x 3/4 c.m. Each with everted margins on the lateral side of right chest in area of 13 x 8 c.m., 3 c.m. Below the posterior axillary fold.
(5) Wound of entry going in 1 x 3/4 c.m. Inverted margin on front of right forearm middle part. No blackening or burning was present.
(6) An abrasion 2 x 2 c.m. On front of right chest 6 c.m. Above and medial to right nipple.
' Injuries Nos.1 to 5 had been caused by fire-arm, were anti-mortem and injuries Nos.1 and 3 were sufficient to cause death in the ordinary course of nature.
' The DoctOr also conducted autopsy of Nawazish Ali aged about 20/22 years, the co-accused of the appellant who had been killed during the course of occurrence, and found the following injuries on his person:--
(1) An incised wound 2-1/2 x 1-1/2 c.m. On the junction of anterior 2/3 and posterior 4/7 .... Left side of neck at the base liquified blood was coming out from the wound. Incised left caroted artery was visible from the wound. On probing wound was only 3 c.m. Deep.
(2) Contusion 10 x 2-1/2 c.m. On the back of right shoulder.
(3) Contusion mark 6 x 2 c.m. On the back of left shoulder.
' The death was caused on account of injury No,1 which was fatal and had resulted in profuse bleeding from the artery. The injuries were caused with sharp-edged as well as blunt weapons.
' The P.W. Also examined Khaliq Dad appellant and described the following injuries on his person:--
(1) An abrasion 1-1/2 x 1 c.m. On the back of left chest lower chest 4 c.m. Left to midline.
(2) An abrasion 8 x 1/16 c.m. On the back of left chest on mid scapula region.
(3) Contusion mark 14 x 1/2 c.m. On outer and backside of left shoulder.
(4) Lacerated wound 1-1/3 x 1/2 c.m.. Muscle deep on the left side of head 10 c.m. Above and back to left ear.
(5) Lacerated wound 1 x 1/4 c.m. x muscle deep on the left back of head 5 c.m. Below and back to injury No,4.
(6) Incised wound 9 x I c.m. Muscle deep on the right side of head 7 c.m. Above the right ear.
(7) Contused swelling 10 x 5 c.m. On the left tample.
(8) Lacerated wound 1/2 x 1/4 c.m. On the outer side of left upper eye-lid with swelling 4 x 2 c.m.
(9) Contused swelling 7 x 3 c.m. On the'front medial aspect of right thigh 2 c.m. Above the knee- ioint.
(10) Contusion mark 8 x 3 c.m. On the medial side of left lower leg middle part.
(11) Contusion mark 8 x 3. c.m. On outer side of right lower leg upper part.
(12) Contusion mark 9 x 2 c.m. On outer side of right knee-joint.
(13) Lacerated wound 1/2 x 1/2 c.m. On the left and inner side of lower lip.
(14) Complaint of pain with nasal bleeding on the bridge.
' All the injuries have been caused with blunt weapon except injury No,6 which was result of a sharp-edged weapon.
' Nazar Muhammad complainant was also subjected to medical examination and following injuries were noted on his person:--
(1) An abrasion 1 x 1/2 c.m. With swelling 5 x 2 c.m. On the bridge of nose.
(2) Contused swelling 5 x 4 c.m. At the base of paimar side of left thumb.
' They have been caused with iiunt weapons.
' Muhammad Afzal given up P.W. Was medically examined and the following injury was found on his person which had been caused with fire-arm: --
(1) Round wound 3/4 x 3/4 c.m. With inverted margins and 1/2 c.m. Deep on front of right thigh at the junction of upper 1/3 and lower 2/3 of thigh. No burning or blackening was present on the margins.
8. The rest of the witnesses except Investigating Officer are more or less formal in nature. However, P.W.5 Khan Muhammad, Patwari, who prepared the site plans Exh.P.A. And Exh.P.A./1 deposed that he prepared the same on the pointation of the witnesses and underinstructions of the Investigating Officer. As already pointed out, the investigation was conducted by Khadim Hussain P.W.13 and the important recoveries effected by him from the spot have already been referred to.
9. After close of the prosecution evidence, the appellant Khaliq Dad was examined under section 342, Cr.P.C. As per his statement, he came up with the following version:-- ' It is correct, I was going from Kotmomin to Chak No,19 on foot when I passed near the place of occurrence I saw Munawar and Iltaf deceased persons armed with Chhuri and Sota respectively, were following Nawazish Ali deceased. I asked them not to aggress Nawazish Ali thereupon Altaf and Munawar started giving me blows with their respective weapons. I became unconscious and do not know what happened thereafter. I regained my senses in hospital and came to know that Nawazish, Munawar and Altaf were killed during fight.
10. Arguments heard and the record perused with the help of the learned counsel for the parties. As it is evident from the narration of the facts detailed above, the following facts are admitted:-- The place of occurrence as stated by the prosecution has not been disputed by the accused- appellant. It is admitted fact that Munawar Hussain, Altaf Hussain from the complainant party and Nawazish Ali from the accused party were injured and succumbed to the injuries at the spot. Apart from the aforesaid three deceased, Nazar Muhammad P.W.11, Afzal not produced and Khaliq Dad appellant were injured at the spot during the incident. According to prosecution, Nawazish is the main accused who had motive to kill Munawar Hussain as brother of Nawazish Ali had been killed by the complainant party, although according to him as a result of an accident which he met with the tractor belonging to the complainant party. Nawazish, Khizar Hayat and Khaliq Dad and the three came to the spot while riding motorcycle. Nawazish Ali was carrying a gun which subsequently stated to be a licensed weapon of Khaliq Dad appellant. It has been the consistent stand of the prosecution witnesses as per depositions made by Nazar Muhammad and Muhammad Anwar in the Court that Nawazish Ali fired a shot hitting Munawar Hussain which proved to he fatal. He was thereafter given a sickle blow on the neck. The injury caused profused bleeding from the main artery as a result of which Nawazish Ali died at the spot. Thereafter, according to prosecution, the gun carried by Nawazish Ali fell down which was picked up by Khaliq Dad appellant. He, in the first instance, inflicted a Butt blow on the face of the complainant and thereafter fired a shot from the gun hitting Altaf Hussain on his abdomen. Khizar Hayat did not perform any overt act except that he held Munawar Hussain in his claspe whereafter he was fired at by Nawazish Ali. He fled away during the occurrence. Khizar Hayat, however, was not found guilty and was acquitted of the charge against him.
11. As against the prosecution version the defence version put forward by Khaliq Dad appellant through his statement under section 342, Cr.P.C. That complainant party comprised of Munawar Hussain and Altaf Hussain deceased bad mounted an attack on Nawazish Ali and the appellant prevented them from doing so. They got infuriated and subjected him- to severe beating as a result of which he fell unconscious and as such he was not in a position to describe or explain as to how Munawar Hussain and Altaf Hussain were killed. The defence version as put forward by appellant is of no help to determine the fact in issue as to how occurrence took place and especially how Munawar Hussain and Altaf Hussain were done to death. This statement is rather evasive and does not in any manner help to resolve the issue involved herein.
12. The deeper appraisal of the evidence comprising of the ocular account furnished by the eye- witnesses and also keeping in view the medical evidence, the prosecution version suffers from a number of fallacies and infirmities. As regards murder of Munawar Hussain, there is no controversy as according to prosecution itself, the same had been caused by Nawazish Ali. Nawazish Ali who carried the gun opened fire and Munawar Hussain fell victim to the same. The narration of incident thereafter does not appeal to reason and appears to be inconsistent and unplausible. After first fire, Nawazish Ali was subjected to sickle blow which was quite severe and he could not sustain the injury. Thereafter, Khaliq Dad appellant took up the gun. When Nawazish Ali who was armed with a gun was subjected to severe blow with the sickle, the P.Ws. Must be very close to him. Nawazish Ali when he fired at Munawar Hussain, he was standing at some distance from the witnesses as per the site plan which is the pictorial diagram of the incident.
' Nawazish Ali who had come prepared by arming himself with a gun and has already killed one person and has also a motive against the complainant party would have easily fired a second shot especially when the gun was a double barrelled one. The fact that gun was dropped and was picked up by Khaliq Dad does not appear to be acceptable because the P.Ws. Who were not empty-handed and they were equipped with sickle and Dangs, etc., they could not have permitted Khaliq Dad to pick up the gun and thereafter resorted to firing. As per site plan, Khaliq Dad would be farther from Nawazish Ali than the witnesses who had practically fallen upon him and had caused injuries on his person. The possibility that both the persons would have been injured by Nawazish Ali cannot be ruled out rather the same appear to be more acceptable. The question as to why Khalid Dad has been alleged to have fired a shot, the answer is not difficult to understand, Khaliq Dad has been injured at the spot and in order to justify the injuries on his person, the blame was put to him.
Khizar Hayat who is stated to have fled away from the spot seems to have been falsely implicated because it is bit unusual that three persons would have come on one motorcycle and out of them two would be empty-handed. It can be accepted that one person would have driven the motorcycle and normally he is to be empty-handed and the persons sitting at the pillion would be carrying weapon. The plan seems to be that Khaliq Dad and Nawazish Ali came to the place of occurrence in order to mount an attack. Khaliq Dad was empty-handed as he has to drive the motorcycle and Nawazish Ali would have carried the gun because he had motive to commit murder of the deceased persons. Somehow the plan could not succeed. They could not make escape after the incident, therefore, Nawazish Ali and Khaliq Dad both were apprehended or subjected to counter-attack in their self-defence. The participation of Khizar Hayat is negated for this reason as well. He could not have held Munawar Hussain in his claspe and asked Nawazish Ali to fire at him by risking his own life. The prosecution, therefore, has not come forward with true narration of facts.
13. The prosecution story is further contradicted by the fact that Exh.P.A. Which is the site plan is always treated as an important document. Site plan bears the notes in black by the Draftsman and notes in red by the Investigating Officer. As per note No,6 in black as well as note No,7 in red given by Draftsman and Investigating Officer respectively, it is Khizar Hayat who is stated to have been fired at Altaf which is contrary to what has been stated by the eye-witnesses i,e, Nazar Muhammad and Muhammad Anwar. According to them, Khaliq Dad appellant had fired at Altaf Hussain deceased. Although both the Draftsman and the Investigating Officer are not eye-witnesses yet they prepared the site plan on the pointation of the witnesses. The significance of these notes cannot be ignored merely treating them as an inadvertent mistake because both the wintesses i,e, Draftsman and the Investigating Officer have stated that it was Khizar Hayat who fired at Altaf. This contradiction also creates a dent in the prosecution case. As held by the Hon'ble Supreme Court in the case of Muhammad Ahmad and another v. The State and others (197 SCMR 89) site plan prepared by Draftsman-on pointation of eye-witnesses can he referred to for determining the respective positions of the accused and deceased. The site plan, therefore, is not without significance. Any note or reference therein, if contradictory, to the prosecution case cannot be just ignored.
14. In view of the above discussion, the prosecution has not been able to discharge its onus beyond doubt and it suffers from material discrepancy and inconsistency, it would be unsafe to uphold and maintain the conviction and sentence of Khaliq Dad appellant. The appeal is, therefore, allowed. The appellant's conviction and sentence recorded by Malik Nazir Hussain Awan, learned Sessions Judge. Sargodha, vide judgment dated 16-6-1998, is set aside and he is acquitted of the charge against him. He will be released from jail forthwith if not required in any other case.
15. For the reasons recorded above, Criminal Revision No,339 of 1998 fails and is hereby dismissed.