' SHEIKH ABDUL RAZZAQJ.--- Briefly stated the facts are that on 23-10-1996 Muhammad Abdullah complainant (P.W.1) alongwith his brother Muhammad Arshad and Muhammad Ashraf were going to Bazar. At about 12-00 noon they reached in front of the house of Malik Muhammad Ahmed when Muhammad Bashir son of Rehmat Ali suddenly emerged from his house armed with .12 bore carbine. He (Muhammad Bashir) raised Lalkara and then fired with his carbine hitting his brother Muhammad Ashraf on the front of his chest, as a result of which he fell down. The accused Muhammad Bashir, it is alleged, then fled away from the place making aerial firing. The complainant and his brother Muhammad Arshad then removed the injured to Allama Iqbal Memorial Hospital, Sialkot where he succumbed to the injuries. The motive behind this occurrence is that a quarrel had taken place between Muhammad Ashraf deceased and Muhammad Bashir accused on 21-10-1994 while playing volley ball and the said dispute was resolved with the intervention of Mushtaq son of Kamal and Muazam Ahmed alias Tikka son of Muhammad Ahmed.
The accused nourished grudge on that account and consequently committed his murder.
2. On the receipt of his information Muhammad Aslam Cheema S.I.(P.W.11) reached Civil Hospital, Sialkot where he recorded complaint Exh.P.A on the statement of Muhammad Abdullah (P.W.1). He then dispatched the complaint to police station for formal registration of case through Muhammad Malik, constable. He prepared injury statement Exh.P.0 and inquest report Exh.P.H in respect of Muhammad Ashraf deceased. He also prepared an application Exh.P.I for post-mortem examination and dispatched the dead body through Tanvir Ahmed and Muhammad Nawaz constables to the mortuary. He thereafter moved to the place of occurrence, secured blood- stained earth vide memo. Exh.P.B, collected a crime empty P.1 and secured it vide memo. Exh.P.C.
On the same day Muhammad Nawaz and Tanvir constables produced before him last worn clothes of the deceased P.2 to P.4 and a sealed phial which he secured vide memo. Exh.P.D. He also searched the accused and got the place of occurrence inspected through Akhtar Naqash (P.W.14) who handed over site plans Exh.P.K and Exh.P.K/1 to him which bear his notes in red ink. On 8-11-1994 he arrested Muhammad Bashir accused who on 10-11-1994 led to the recovery of carbine P.5 which he secured vide memo. Exh.P.E. He deposited the sealed parcels of blood-stained earth, crime empty and carbine with Moharrir on the respective dates of their recoveries. After completion of investigation and its verification by D.S.P. Circle, the accused was sent up to the Court to face trial.
3. A charge under section 302, P.P.C. Was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused prosecution V examined P.W.1 Muhammad Abdullah complainant, P.W.2 Muhammad Arshad (eye-witness), P.W.3 Karam Din P.W.4, Muhammad Iqbal, P.W.5 Mushtaq, P.W.6 Mozzam Ahmed, P.W.7 Naseer Akhmed, P.W.8, Dr. Syed Sajjid Ali, P.W.9, Muhammad Aram A.S.I. P.W.10 Muhammad Nawaz constable, P.W.11 Muhammad Aslam Cheema S.I.
P.W.12 Bakhtiar Ahmed, constable, P.W.13 Dr. Muhammad Younas Chughtai, P.W.14 Akhtar Nat:lash, and P.W.15 Nur Hussain Headconstable. Thereafter, the learned Special Public Prosecutor produced report of Chemical Examiner Exh.P.M, report of Forensic Science Laboratory Exh.P.N and report of Serologist Exh.P.O and then closed prosecution evidence vide his statement dated 15-11-1995.
5. When examined under section 342, Cr.P.C. The accused denied the prosecution version and stated that he had been implicated in this case falsely. He neither adduced any evidence in his defence nor got his statement recorded under section 340(2), Cr.P.C.
6. After going through the evidence produced by the prosecution, Mr. Zulfiqar Ali Khan Saifi, Additional Sessions Judge, Sialkot acquitted the accused vide judgment dated 18-12-1995. The complainant Muhammad Abdullah has felt aggrieved of the impugned judgment and filed the instant criminal appeal.
7. Arguments have been heard and record perused.
8. Stand of the learned counsel for the appellant is that trial Court has passed order of acquittal holding that presence of Muhammad Abdullah and Muhammad Arshad P.Ws. 1 and 2 at the place of occurrence is doubtful, that evidence of recovery of empty from the place of occurrence has also been held to be doubtful, that medical evidence has also been held not to corroborate the ocular account of the prosecntion version. He submitted that trial Court was not justified in disbelieving the said evidence as the findings of the trial Court are not fortified by the evidence which has come on record. He further submitted that, occurrence has taken place at 12-00 Noon and has been witnessed by Muhammad Abdullah complainant (P.W.1) and his brother Muhammad Arshad (P.W.2), that ocular account stands corroborated from medical evidence which has come on record through the statement of Dr. Muhammad Younas Chughtai, (P.W.13) who conducted the post-mortem examination of Muhammad Ashraf deceased, that ocular account further stands corroborated from the evidence of recovery of empty secured vide memo. Exh.P.0 and further stands corroborated from evidence of recovery of 12 bore carbine, secured vide memo. Exh.P.E coupled with the report of Forensic Science Laboratory Exh.P.N. He, thus submitted that trial Court has not passed the impugned judgment in accordance with law and the same be set aside and the accused be convicted in accordance with law.
9. Conversely, the impugned Judgment has been supported by the learned counsel for the accused/respondent No,1. He further submitted that trial Court has rightly disbelieved the ocular account furnished by Muhammad Abdullah, complainant (P.W.1) and Muhammad Arshad (P.W.2), that similarly evidence of recovery as well as medical evidence has been held not to corroborate the ocular version brought on record through the statements of P.Ws. 1 and 2.
10. Learned counsel for the State has, however, supported the contentions of the learned counsel for the appellant.
11. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties.
12. According to the complaint Exh.P.A the occurrence has taken place at about 12-00 Noon on 23- 10-1994. At the time of occurrence the complainant as well as his brother Muhammad Arshad (P.W.2) were accompanying the deceased, when he (deceased) was caused a fire-arm injury by the accused respondent on his chest. It is evident from the very complaint Exh.P.A as well as statement of P.Ws. 1 and 2 that thereafter the injured was removed to Allama Iqbal Memorial Civil Hospital, where he was medically examined by Dr. Syed Sajjid Ali (P.W.8) on 23-10-1994 at 12-30 p.m. As is evident from medico-legal report Exh.P.F. This medico-legal certificate also shows that injured since deceased was brought to the hospital by Muhammad Arshad (P.W.2). The complaint was lodged on the same day at 2-50 p.m. This promptness in the F.I.R. Rules out any possibility of false implication of the accused. The oral statement of the complainant (P.W.1) coupled with Muhammad Arshad (P.W.2) stand corroborated from the medical evidence which has come on record through the statement of Dr. Syed Sajjid Ali (P.W.8). According to the statement of P.W.8 the deceased had received one wound of injury consisting of 9 circulated wounds with an inverted abraded margins and another wound of exit consisting of 4 lacerated circular wounds with an everted margins. According to the complainant's stand the accused/respondent No,1 had inflicted only one injury on the person of deceased which facts stands corroborated from the statement of P.W.8.
13. The learned trial Court has observed that medical evidence has not corroborated the prosecution version and in this respect has relied upon the statement of Dr. Muhammad Yunas Chughtai (P.W.13) who conducted the post-mortem examination on 23-10-1994 at 4-25 p.m. The stand of the trial Court was that as semi-digested food had been found in the stomach of the deceased and 2 1/2/ 3 hours are taken for digesting the food, so it will be presumed that occurrence has not taken place on 12-00 Noon as the deceased is said to have taken the meal at about 9-00/9-30 a.m. As per Muhammad Arshad (P.W.2). This finding of the trial Court is also not based on correct appreciation of the evidence brought on record. There is no doubt that it is admitted by P.W.2 Muhammad Arshad that they had taken meal at about 9-00/9-30 a.m. On 23- 10-1994. But this admission does not make any difference as the occurrence took place at 12-00 Noon whereas injured since deceased was medically examined at 12-30 p.m. As per statement of (P.W.8) and his post-mortem examination was conducted on the same day i,e, 23-10-1995' at 4-25 p.m. The time between death and post-mortem examination has been given 3-1/2 hours whereas time between death and injuries has been given as 1 to 2 hours. Now if the post-mortem examination was conducted at 4-25 p.m. After delay of 3-V2 hours from the death of the deceased then it means that semi-digested food could be found in the stomach of the deceased at the time of occurrence, as after 2-'/2 hours the process of digesting starts as per P.W.13. As per statement of Dr. (P.W.13) stomach normally becomes empty within 5 to 6 hours. Thus even medical evidence supports the ocular account regarding the time of occurrence and findings of the trial Court on that score are not I fortified by record.
14. Again the trial Court has disbelieved the evidence of recovery of empty of carbine secured vide memo. Exh.P.C. The reasoning advance by the trial Court are that the said empty was dispatched to Forensic Science Laboratory after undue delay. There is no dispute to the effect that empty was secured on 23-10-1994 and it was sent to Forensic Science Laboratory on 7-11-1994. It is also evident from record that carbine 12 bore Exh.P.5 was recovered at the instance of accused on 10-11-1994 and the same was sent to the office of Forensic Science Laboratory on 22-11-1994. It is thus clear that before the carbine was recovered at the instance of accused the empty recovered earlier had been dispatched to Forensic Science Laboratory Lahore. Had the empty been sent to Forensic Science Laboratory after effecting recovery of carbine' it could be said that the empty has been procured after firing it from the carbine. But this is not the case in hand. It is evident from the report of Forensic Science Laboratory Exh.PN that parcel containing empty was received on 7-11-1994 and that of carbine was received on 22-11-1994. As per said report the empty has been found to have been fired from .12 bore shot-pistol (carbine). Thus, even evidence of recovery of empty connects the accused with the commission of this offence. The mere delay in forwarding the parcel containing empty is immaterial and of no consequence. The trial Court, as such was net justified in disbelieving this piece of evidence.
15. In the instant case the complainant was accompanied by his 'brother Muhammad Arshad (P.W.2) and Muhammad Ashraf since deceased. The prosecution has relied upon the statement of complainant (P.W.1) and Muhammad Arshad (P.W.2) and has not produced any other evidence.
The mere fact that both P.Ws. 1 and 2 are real brothers of the deceased, is no ground to discard their testimony as they are the natural witnesses having no previous animostity with the accused to implicate him in this case falsely. It also does not stand to reason as to why the real brothers should leave the real murderer of their deceased brother and to involve some other person falsely.
16. The upshot of above discussion is that prosecution has succeeded in establishing its case against the accused/respondent beyond any shadow of doubt. Consequently the appeal is accepted and impugned judgment is set aside. The accused respondent No,1 is accordingly convicted under section 302(b), P.P.C. And is sentenced to imprisonment for life and to pay compensation of Rs,25,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased. He is, however, extended benefit of section 382-B, Cr.P.C. The accused/ respondent No,1 has not been awarded capital punishment keeping in view the fact that he was initially acquitted and has acquired the right of expectancy of life. The accused/ respondent No,1 is on bail, so necessary proceedings be initiated for lodging him in jail to serve out the sentence awarded to him.