' Briefly stated the facts are that Khalid Mehmood complainant (P.W.9) is resident of Chak No,314/JB. On 10-10-1988 he alongwith his brother-in-law ({{URDU TEXT}} ) Muhammad Afzal resident of Chak No,312/JB made for Chak No,411/JB to see his brother-in-law ({{URDU TEXT}}) Abdul Khaliq.
After sitting for some time with Abdul Khaliq both of them made for Chak No,410/JB to see Iftikhar Ahmed. Abdul Khaliq also made for Chak No,410/JB on his motorcycle to see some of his friends. At 4-25 p.m., he alongwith Muhammad Afzal, and Iftikhar Ahmed on their cycles left for Chak No,410/JB for offering condolence. When they reached near Rajbah bridge, they saw that Abdul Khaliq was coming on his motorcycle and Muhammad Amjad and Kashif sons of Abdul Ghafoor were standing under an acacia tree and started firing upon Abdul Khaliq. As a result of successive fires Abdul Khaliq fell on the ground. They raised hue and cry upon' which the assailants fled away towards Chak No,410/JB. The complainant and others could not chase them as they were armed with deadly weapons. Abdul Khaliq died on the spot as a result of said injuries. Motive behind this occurrence is the dispute between the accused and the deceased regarding their inherited property. After leaving Muhammad Afzal and Iftikhar Ahmed to guard over the dead body, he made for lodging report. Babar Anwar, Inspector/S.H.O. (P.W.13) was posted at Police Station Chhutiana on 10-10-1998 at the relevant time. He was present at Adda Chak No,306/JB in connection with patrolling when on the statement of complainant Khalid Mehmood, he recorded complaint Exh.P.F., which he sent to the police station for formal registration of case through Arshad Mehmood constable. He then made for the place of occurrence, prepared statement of injuries of Abdul Khaliq Exh.P.A. Inquest report Exh.P.B. And handed over the dead body to Muhammad Arshad constable for post-mortem examination. He prepared rough site plan Exh.P.L., secured blood- stained earth vide memo. Exh.P.H., secured 4 empties of bullets P.3/1-4 as well as motorcycle of the deceased vide memo. Exh.P.I., recorded supplementary statement of the complainant and statements of witnesses. On 11-10-1998 Muhammad Ashraf constable (P.W.3) produced last-worn clothes of the deceased, which he secured vide memo. Exh.P.E. On 12-10-1998 Habib-ur-Rehman, Patwari (P.W.8) handed over site plans Exhs.P.G. And P.G./1. On 22-10-1998 he arrested both the accused from Adda Chak No,306/JB. On 26-10-1998 he directed the Moharrir to dispatch parcels.
On 28-10-1998 accused Muhammad Amjad led to the recovery of pistol P.4 lying under acacia tree which was unloaded and it contained 5 live bullets P.5/1-5. He secured the pistol and bullets vide memo. Exh.P.J. On the same day Kashif accused led to the recovery of Chhuri P.6 from the same place, which he secured vide memo. Exh.P.K. On 29-10-1998 he sent the accused to judicial lock-up.
On 1-11-1998 he prepared report under section 173, Cr.P.C. On 3-11-1998 he recorded the statements of Farooq Ahmed and Israr Ahmed constables. On 6-11-1998 he recorded the statement of Muhammad Farooq M.H.C. After usual investigation the case was sent to the Court for trial.
2. A charge under section 302/34, P.P.C. Was framed against the accused, to which they pleaded not guilty and claimed trial.
3. To bring home guilt to the accused prosecution examined P.W.1 Dr. Javed Akhtar Shah, who on 11- 10-1998 conducted post-mortem examination of the deceased and found the following injuries on his person:--
(1) Multiple incised wounds in an area of 15 x 5 c.m. With cutting of underlying bones (parietal and frontal), with sufficient view of brain matters in the wound on the left side of head, 1-1/2 c.m. Above the pinna of left ear.
(2) A fire-arm entrance wound, margins inverted, 1 c.m. In diameter on the back of right side of head, making a track from right to left passing through brain matters and a metallic piece seated on the front and lateral angle left eye after passing through orbital bone, bullet was recovered.
(3) A fire-arm entrance wound 1 c.m. In diameter on the back of left shoulder making corresponding exit wound 1 c.m. In diameter on the front of left shoulder.
(4) A fire-arm entrance wound 1 c.m. In diameter on the back of left shoulder 1.5 c.m. Below injury No,3 making track through shoulder and communicating with exit wound of injury No,3.
(5) A fire-arm entrance wound 1.5 c.m. In diameter on the outer side of left upper part of left arm, making corresponding exit wound 1.5 c.m. In diameter on the front part of upper left arm 2 c.m.
Away from margins of armpit.
(6) A fire-arm entrance wound 1 c.m. In diameter on the outer side of lower 1/3 or left forearm, making corresponding exit wound 3 c.m. x 2 c.m. On the front side lower 1/3 of left forearm with fracture of lower end of ulna bone.
(7) A fire entrance wound 1.5 c.m. In diameter on the outer side of right lower part of abdomen, 12 c.m. From midline passing back and downward damaging ascending colon, iliac vessels and rested on right side of scrum.
(8) A fire-arm entrance wound 1 c.m. In diameter on the outer side of right arm passing through arm making corresponding exit wound 1 c.m. In diameter on the back of upper part of right arm.
(9) 'A fire-arm entrance wound 1 c.m. In diameter on the outer of upper part of right chest 2 c.m.
Below margins of armpit making track through right chest wall and recovered metallic piece underlying skin from lower part of right chest near the midline on the back.
' Scalp and skull were injured under injuries Nos.1 and 2, vertebrae was injured under injury No,7.
Membranes, and brain were dangerously damaged under injuries Nos.1 and 2. Spinal cord was intact.
' In his opinion the cause of death was injury to vital organ (brain) and haemorrhage shock (intra abdominal) individually as well as collectively which was sufficient to cause death in ordinary course of life. All injuries were ante-mortem and were caused by fire-arm weapon except injury No,1 which was caused by sharp-edged weapon. Time between injuries and death was immediate and between death and post-mortem was 12 to 18 hours. He produced correct carbon copy of post-mortem examination report Exh.P.C. And sketch of injuries Exhs.P.C./1 and 2. He also endorsed statement of injury Exh.P.A. And inquest report Exh.P.B. And so also X-Ray report Exh.P.D. And film Exh.P.D./1.
4. P.W.2 Muhammad Amin identified the dead body of Abdul Khaliq on 11-10-1998. P.W.3 Muhammad Arshad constable escorted the dead body of Abdul Khaliq for post-mortem examination and thereafter produced his last-worn clothes which were secured vide memo. Exh.P.E. Farooq Ahmed H.C. P.W.4 on 10-10-1998 recorded formal F.I.R. Exh.P.F./1 on the basis of complaint Exh.P.F. On the same day he was given two parcels, one containing empties and the other, containing blood- stained earth. On 26-10-1998 he handed over parcel containing empties to Israr Ahmed (P.W.5) for onward transmission to the office of Forensic Science Laboratory. On the same day he handed over parcel containing blood-stained earth to Muhammad Arshad Constable (P.W.6) for onward transmission to the office of Chemical Examiner. On 28-10-1998 he was given parcel containing pistol for keeping the same in Malkhana, which he delivered to Muhammad Ashiq Ali constable (P.W.7), on 6-11-1998, for delivering in the office of Forensic Science Laboratory, Lahore. Israr Ahmed, Muhammad Arshad and Muhammad Ashiq Ali constable P.Ws.5, 6 and 7 respectively corroborated the statement of P.W.4, Habib-ur-Rehman P.W.8 prepared site Exhs.P.G. And P.G./1 and handed over the same to the Investigating Officer. Khalid Mehmood complainant P.W.9 corroborated his version appearing in complaint Exh.P.F. Muhammad Afzal P.W.10, and Faqir Hussain P.W.11 are the .Eye- witnesses and supported the prosecution version appearing in complaint Exh.P.F. Muhammad Hussain A.S.-I. P.W.12 deposed that on 28-10-1998 accused Muhammad Amjad led to the recovery of pistol P.4 which he secured vide memo. Exh.P.J. And on unloading found that it contained 5 live bullets Exhs.P.5/1-5. On the same day Kashif accused led to the recovery of Chhuri P.6, which he secured vide memo. Exh.P.K. Both articles P.4 and P.6 were recovered by the accused lying under the same acacia tree. Babar Anwar, Inspector/S.H.O. P.W.13 is the Investigating Officer whose evidence has already been discussed above. Learned A.P.P. Produced reports of Chemical Examiner Exhs.P.N and P.P., reports of Serologist Exhs.P.O. And P.Q. And report of Forensic Science Laboratory Exh.P.R. And then closed the prosecution evidence vide statement dated 20-10-1999.
5. When examined under section 342, Cr.P.C. The accused Muhammad Amjad denied the prosecution version and in reply to question No,12 as to why this case had been registered against him, he stated as follows:-- "Abdul Khaliq deceased married with Mst. Manzooran and two daughters from the wedlock are living. The deceased divorced Mst. Manzooran. Thereafter, deceased married with Mst. Ameena.
There was issues from the wedlock of deceased and Mst. Ameena, Abdul Khaliq deceased divorced Mst. Ameena also. He was desirous of marriage. In order to accomplish his designs he contracted to sell his agricultural land situated in the area of Chak No,94/R.B. The brothers of Mst. Manzooran aforementioned and brothers of said Mst. Ameena got annoyed as the children of their sisters were being deprived of inheritance. I and my co-accused had not inherited the agricultural land of the deceased. We were falsely involved in this case."
6. The accused Kashif also denied the prosecution version. However, both the accused adduced evidence in their defence and examined D.W.1 Muhammad Naeem, D.W.2 Muhammad Izhar-ul-Haq and D.W.3 Abdul Ghafoor. Thereafter, they closed their evidence.
7. After going through the evidence produced by the prosecution as well as the defence, the trial Court convicted the accused Muhammad Amjad under section 302(b), P.P.C. And sentenced him to life imprisonment and further directed him to pay compensation amounting to Rs,20,000 or in default thereof to undergo S.I. For 6 months. He convicted the accused Kashif under section 302(c)/34, P.P.C. Read with section 308, P.P.C. And sentenced him to 14 years' R.I. And further pay a sum of Rs,2,52,000 as Diyat to the legal heirs of Abdul Khaliq deceased. The accused Kashif was further directed to pay a sum of Rs,20,000 under section 544-A, Cr.P.C. Or in default thereof to undergo S.I. For 6 months. Both the accused were, however, extended benefit of section 382-B, Cr.P.C. Both the accused/appellants felt aggrieved and filed the instant appeal.
8. Alongwith this appeal Criminal Revision No,698 of 1999 has also been filed by the complainant Khalid Mehmood for the enhancement of sentence awarded to the accused/appellants. As both the appeal and criminal revision arise out of the same judgment so these are being disposed of by this judgment.
9. Arguments have been heard and record perused.
10. It is submitted by the learned counsel for the appellants that motive ascribed to the appellants does not appeal to reason and that is why it has not been believed even by the trial Court as is evident from paragraph No,20 of the judgment, that occurrence as per contents of F.I.R. Appears to be an unwitnessed one that is why it has not been stated in the complaint Exh.P.F. As to how many fire shots were made and where it landed and what was the nature of the fire-arm used in the commission of this offence, that non-mentioning of aforementioned facts further lends support to the defence plea that it has not been witnessed by the complainant or the alleged eye-witnesses, that even the presence of complainant and eye-witnesses hardly stand to reason as all of them are residents of different places, that complainant Khalid Mehmood is resident of Chak No,314/JB whereas Muhammad Afzal, eye-witness who is ({{URDU TEXT}}) of the complainant is resident of Chak No,312/JB and the deceased Abdul Khaliq who is brother-in-law 0) ) of the complainant is resident of Chak No,411 that the presence of all these persons at the relevant place at one time hardly stands to reason, that it is not evident from record as to how the accused had the knowledge of passing of deceased near Chak No,410 at the relevant time when the accused/ appellants are residents of Chak No,94/RB, District Faisalabad, that ocular account also stands belied by the medical evidence, that as per prosecution version deceased was inflicted fire-arm injuries whereas injury No,1 on the person of deceased is of sharp-edged weapon, that even injury No,1 could not be caused by Chhuri and it could only be the result of some heavy cutting weapon as it has cut the head at 4 different places, that even otherwise fire-arm injuries on the person of deceased could not be caused by one fire-arm as the injuries are of different size and diameters, that only evidence connecting the accused/appellants with the commission of this offence is the report of Forensic Science Laboratory Exh.P.R., which shows that the pistol recovered at the instance of Muhammad Amjad accused/appellant has been found wedded with the empties recovered from the place of occurrence, that this evidence also looses its force, as empties were recovered on 10-10-1998 but the same were not sent to the Forensic Science Laboratory till the recovery of pistol, recovered on 28-10-1998, that possibility of sending the empties after firing from pistol P.4 cannot be ruled out, that had the empties been sent earlier to the recovery of pistol there could be some force in the prosecution version connecting the accused/appellant Muhammad Amjad with the commission of this offence, that even the memo. Of recovery of pistol Exh.P.J. Does not contain the exact place of recovery, that similarly memo. Of recovery of Chhuri Exh.P.K. Does not contain that it was blood-stained, whereas the said Chhuri has been found to be stained with blood as per report of Chemical Examiner, that even memo. Of recovery of Exh.P.K. Does not show if a parcel, of Chhuri was prepared on the spot and this fact further makes the report of Chemical Examiner highly doubtful. He thus, submits that all these facts prove that prosecution has failed to bring home guilt to the accused/appellants beyond reasonable doubt.
11. Conversely, impugned judgment has been supported by the learned counsel for the complainant, assisted by the learned counsel for the State.
12. As per contents of F.I.R. The occurrence has taken place within the area of Chak No,410/JB whereas admittedly the complainant Khalid Mehmood (P.W.9) and Muhammad Afzal (P.W.10) are residents of Chak Nos.314/JB and 312/JB respectively. It is also fact that Abdul Khaliq deceased was resident of Chak No,411/JB. It is also fact that both the accused/appellants are residents of Chak No,94/JB, District Faisalabad. There is nothing on the record to show as tc how the accused/appellants knew that the deceased shall be passing within the area of Chak No,410/JB at the relevant time. Had the accused/appellants been residents of Chak No,410/JB and were knowing the fact of passing the deceased through the place of occurrence, it could be said that they had the knowledge of his passing from that place. However, prosecution has not brought on record any evidence on that score. Thus, the presence of the accused/appellants at the relevant time culminating into the death of the deceased at their hands is shrouded in mystery. The presence of the accused/appellants as well as of the complainant and witnesses at the relevant time becomes highly doubtful as even the contents of F.I.R. Do not reveal as to with what particular fire-arm the injuries had been caused to the deceased. The complainant Exh.P.F. Also does not contain even the number of fire shots as well as the places upon which it landed on the person of the deceased. The complainant has stated that both the accused/appellants were armed with fire-arms. His said contention stands belied by the statement of P.W.1 Dr. Javed Akhtar Shah who has deposed that injury No,1 on the person of deceased had been caused by some sharp-edged weapon. To bring this fact in line, the prosecution has tried to record supplementary statement of the complainant wherein he has disclosed that Kashif accused/appellant was armed with Chhuri. Even this effort on the part of prosecution has not come to their rescue. A perusal of injury No,1 reveals that it could not be caused by Chhuri and it could only be result of some heavy cutting weapon, as the scalp of the head had been cut at 4 different places, which could not be the result of some injuries of a Chhuri. Thus, the crude efforts on the part of prosecution to improve its original version regarding causing injuries on the person deceased at the hands of accused/appellants has also not worked.
13. Much stress has been laid on the report of Forensic Science Laboratory Exh.P.R. Whereby the pistol recovered at the instant of Muhammad Amjad accused/appellant has been found to be wedded with the empties recovered from the place of occurrence. This piece of evidence apparently appeals to reason. However, when examined minutely it also loses its intrinsic value.
According to the prosecution version empties were recovered on 10-10-1998 and were secured vide memo. Exh.P.I. However, pistol P.4 has been recovered on 28-10-1998 vide memo. Exh.P.J. It is also fact that pistol and the empties were sent to the Forensic Science Laboratory on 28-10-1998 and 6- 11-1998 as is evident from report Exh.P.R. There is no explanation as to why the empties secured on 10-10-1998 were not sent to Forensic Science Laboratory till the recovery of pistol P.4 effected on 28- 10-1998. The possibility of wedding the empties with the pistol recovered on 28-10-1998 cannot be ruled out. Had the empties been dispatched to Forensic Science Laboratory prior to recovery of pistol, the position would have been otherwise. There is another aspect of the matter which relates to the very securing of pistol P.4 vide memo. Exh.P.J. A perusal of this memo. Does not specifically denote the place of recovery. Again Chhuri P.6 is alleged to have been secured on the same day vide memo. Exh.P.K. This Chhuri has not been disclosed to be blood-stained as per memo. Exh.P.K.
However, report of Chemical Examiner discloses the said Chhuri to be stained with blood. It is very strange that parcel of Chhuri was not prepared on the spot and even then prosecution has succeeded in obtaining report of Chemical Examiner showing the said Chhuri to be stained with blood. These facts further make the recovery of Chhuri as well as report of Chemical Examiner untrustworthy.
14. Now a few words may also be mentioned about the motive aspect of the prosecution case. This aspect of the matter has been dealt with by the trial trial Court and has been disbelieved.
15. The upshot of above discussion is that prosecution has failed to prove its case against the accused/appellants beyond reasonable doubt. Accordingly appeal is accepted and the impugned judgment is set aside. The accused/appellants are ordered to be released forthwith if not required in any other case.
16. Since the appeal has been accepted so the Criminal Revision No,698 of 1999 filed by the complainant stands dismissed.