' The appellant has filed this appeal being aggrieved of the judgment dated 30-8-1997 passed by the learned Additional Sessions Judge, Toba Tek Singh, in case F.I.R. No, 158 of 1995, registered on 2- 9-1995 under section 302/34, P.P.C. With Police Station Chutiana, District Toba Tek Singh, whereby the learned trial Judge through his judgment dated 30-8-1997 convicted and sentenced the appellant to life imprisonment with a fine of Rs,20,000. In case of default of payment the appellant was directed to further undergo 2 years' R.I. The appellant was also directed to pay an amount of Rs,20,000 as compensation, in default whereof to further undergo 6 months' R.I. Compensation, if realised was ordered to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Briefly stated facts of the instant case are that the occurrence of the alleged incident took place within the territorial jurisdiction of Police Station Chutiana in which Khalid Rasheed deceased was murdered by Manzoor Ullah appellant and subsequently the above mentioned criminal case was registered against the appellant and his co-accused.
3. After registration of formal F.I.R., the appellant and his co-accused were arrested in the said case which was investigated and after completion of investigation, challan was submitted before the trial Court. The trial Court on receipt of challan framed charge against the accused to which they denied, pleaded not guilty and opted to face the trial.
4. The prosecution in order to prove its case examined as many as 10 witnesses. After conclusion of prosecution evidence, statements of accused persons under section 342, Cr.P.C. Were recorded.
The learned trial Judge upon conclusion of trial acquitted Sana Ullah accused, whereas the appellant was held responsible for the murder of deceased in this case and accordingly he was convicted and sentenced as mentioned above.
5. Learned counsel for the petitioner contends that Sana Ullah, accused has been acquitted on the same evidence and the appellant on the same evidence has been wrongly convicted. Learned counsel for the appellant further contends that the appellant received as many as .18 injuries during the occurrence and he was medically examined. The medico-legal report has not been challenged by the complainant on the State during the investigation and even at the trial stage it could not be disbelieved and if the factum of causing injuries to the appellant during the occurrence is taken into consideration then the total story narrated by the complainant and the other eye-witnesses becomes doubtful and unbelievable. He further contends that while putting both the versions in juxtaposition, the defence version becomes to be more plausible and believable; medical evidence is not in line with the ocular account and fire, according to the witnesses was made from a distance of 8 feet while the doctor has found burning on the wound and has admitted that the burning can be, if the fire is made from a distance of 1/1-2 feet; the witnesses are false witnesses and they have made contradictory statements on the material points and are not believable. They may be disbelieved. He further contends that the witnesses were not present at the spot. Had they been present at the spot, they might have also received injuries during the occurrence. He further contends that the witnesses are inimical and have made false statement. No independent witness of the area was cited in the F.I.R. And had not been produced at the trial. He further contends that the recovery of gun does not provide any corroboration to the ocular account. Forensic Science Laboratory Report is also not helpful to the prosecution and mere report that the gun is in working condition will not be sufficient to hold that this gun has been used during the occurrence without recovery of any empty from the spot and matching of it with the alleged gun. He further contends that the Draftsman has shown the firing from a distance of 8 feet. He further contends that the case of the prosecution is doubtful and the benefit of doubt should be given to the appellant and the eye-witnesses have concealed the material fact of receiving injuries on the person of appellant and the other persons from the accused side. The suppression of the material facts will be sufficient to discard their evidence in this case. He further contends that the accused party went to the police station for recording of their statement as the police with mala fide intention did not record statement of the accused party and kept the matter pending and the statement of the complainant was recorded and case was registered against the appellant. He further contends that the investigation has been conducted in a partial manner and it is a case of dishonest investigation.
6. On the other hand learned counsel for the complainant has opposed the appeal and has stated that the story of receiving injuries by the appellant introduced during the course of trial is concocted one. Accused/appellant and his son arrested on 24-9-1999. He had already been examined on 2-9-1999, i,e, 22 days before his arrest but he and his son had not earlier raised the plea of receiving injuries during the occurrence. They had made no effort to place on record the medico-legal report before the Investigating Officer or before the trial Court. He also contends that D.W.1 Dr. Ghulam Dastgir also examined injuries on , person of the appellant but his medico-legal report was not produced, which shows that the same was bogus one. He further contends that D.W.1 is not a witness of worthy of reliance as the enquiries for issuing fabricated Medico-legal Certificate were pending against him even before the issuance of this Medico-legal Certificate. He further contends that the plea taken by the appellant is an afterthought and is concocted one. A bogus MLR has been received in order to make out a case for self-defence, which plea was not raised throughout the investigation. Hence, this cannot be considered at the time of trial and is to be brushed aside, on this score only. He further contends that the prosecution has proved its case beyond any reasonable shadow of doubt and the appeal may be dismissed.
7. I have heard learned counsel for both the sides and perused the record. The prosecution case consists of motive which has been disbelieved by the learned trial Court. The recovery of gun from the appellant cannot be a corroborative piece of evidence to the ocular account as no empty was recovered from the place of occurrence after the incident and mere report of the Forensic Science Laboratory that the gun is in working condition will not be sufficient to hold that actually this gun has been used in the occurrence by the appellant. Only material evidence against the appellant and his co-accused was the statement of two eye-witnesses i,e, P.W.7 and P.W.8 and one Shehbaz Rasul, P.W.9, Khalid Rashid deceased was son of Bashir Ahmed complainant while Shehbaz Rasul, P.W.9 though is not directly related but belongs to the 'Brotheri' of the complainant. The complainant during the cross-examination has admitted the relationship of witnesses inter se and with the deceased. He has also admitted that Mst. Kaki is daughter of his uncle and she is married in Chak No,114/G.B. And it was admitted by him that she is married to one Rashid who is nephew of Ghulam Rasul and Shehbaz P.W.9 is closely related to the said Ghulam Rasul as he has married to his paternal aunt, namely Mst. Anwar Bibi. So both the eyewitnesses are closely related inter se and as far as their enmity with the appellant is concerned, the complainant has admitted that he had two daughters and one of his daughters Mst. Saif Bibi was. Married 10/12 years ago. P.W.8 also admitted that Ghulam Rasul is his maternal uncle. He also admitted that an abduction case was got registered by Javaid who is brother of Sarfraz, P.W. Against the appellant, his brother and others about abduction of Javaid and thereafter it was converted into section 302, P.P.C. In which Manzodr Ullah, appellant and other accused were challaned and resultantly brother of the appellant was sentenced to death. Appeal against the said conviction was filed which is still pending in the High Court. The complainant party had also filed revision petition against Manzoor Ullah. Apart from this P.W.9 Shehbaz Ahmed also admitted the enmity between the parties. Hence it has become crystal clear that both the eye-witnesses are related inter se and have previous enmity with the accused/appellant. Though they are consistent on the material point regarding fire on the deceased by the appellant on the day of occurrence, but as this only evidence is available against the appellant for his conviction, with the prosecution, the statements of these witnesses are to be considered with due care and caution.
8. Case of the appellant is that the occurrence has not taken place in the manner stated by both the eye-witnesses in their statements. The claim of Sana Ullah, co-accused during his statement under section 342, Cr.P.0 in reply to a question as to why this case against you and why the P.Ws.
Have deposed against you"? He replied as under:-- "The real facts have been explained by my co-accused in my presence and within my hearing. I fully endorse the same."
' The accused/appellant has produced Doctor Ghulam Dastagir, M.O., RHC, Pir Mahal in his defence.
He has stated that on the day of occurrence at 10-30 P.M he medically examined the appellant and found as many as 15 injuries on his person. All the injuries were caused with blunt weapon, having been caused within 3 to 4 hours and the patient was discharged from the RHC on 4-9-1995. During the cross-examination this witness has admitted that some enquiry has been conducted against him on the allegations that he has issued bogus medico-legal reports. Hence I was not ready to accept his statement being statement of a doubtful witness without due care and caution. During the arguments learned counsel for the complainant contended that Manzoor accused of this case in his statement raised this plea that Manzoor Ullah, received injuries during the occurrence. He was medically examined by D.W.1 at the RHC, Pir Mahal. Defence version is afterthought which has been first time raised before the trial Court. To verify this fact, the accused at the time of their arrest raised the same plea or not I examined the statement of investigating Officer, namely, Riaz Ali, S.-I.
(P.W.10) who has denied that no such statement was made before him by the accused at the time of his arrest.
9. Statements of both the eye witnesses do not disclose the causing of any injury to the appellant during the occurrence as has been proved through the statement of D.W.1, who noticed 15 injuries on the person of appellant during the same time in which the occurrence has taken place as has been stated in this case. This fact has been investigated by the Inspector Range Crimes. In order to ascertain this fact I have looked into the Case Diary and this fact has been found mentioned in the subsequent investigation. Whether the Case Diary can be examined during the hearing of appeal or not, this was the second question. This question finds support from Emperor v. Lalmia and another 1943 Indian Cases 206, while deciding an appeal the Calcutta High Court held that the Court if can suo motu look into Police Diary and can question witnesses to contradict evidence. This fact is further supported by Ghulam Hussain v. The State (PLD 1974 Karachi 91). So the Case Diary' can be consulted not for the purpose of conviction but for ascertaining any fact in favour of the accused person. So it is found in the Case Diary that during the subsequent investigation, defence version was duly examined. I am not impressed by the findings of the Investigating Officer and it has got no evidentiary value and the judgment cannot be based on the opinion of the Investigating Officer. Perusal of the case diary was only to the extent whether the plea raised by the accused was taken by them during the investigation. Hence the statement of D.W.1 cannot be brushed aside merely on the ground that some enquiries were pending against him. I hold that the injuries found by the doctor on the person of the appellant were duly proved from the statement of D.W.1 during the trial and these injuries have been suppressed by both the eye-witnesses during their statements before the police and before the trial Court. It has C been proved that the occurrence had not taken place in the manner as has been stated in the ocular account and eye- witnesses had tried to cancel certain facts and it is not safe to rely on their statements, unless they are corroborated by any other material evidence. Even otherwise both the eye-witnesses are admittedly related and inimical towards the appellant hence they are not sufficient to be relied upon for conviction of the appellant. Motive has already been disbelieved. The medical evidence regarding firing the shot by the appellant on the deceased does not support the ocular account.
According fo the draftsman and the witnesses the appellant was about 8 feet away from the deceased when shot was fired while the doctor has found burning and during the cross- examination admitted that the assailant was at a distance of 1/1/2 feet at the time of firing on the deceased. The medical evidence is not in line with the ocular account. Rather it supports the version of the co-accused Sana Ullah in his statement during his examination under section 342, Cr.P.C. The prosecution has failed to prove the case against appellant in the given circumstances of the case. Statements of both the eye-witnesses are not reliable being inimical towards the appellant.
10. In view of the above discussion this appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge against him by extending the benefit of doubt in his favour, who is directed to be released from jail forthwith, if not required to be detained in any other case.