' TANVIR BASHIR ANSARI, J.--The respondent namely Hasnat Ahmad was tried under section 302, P.P.C. By the learned Sessions Judge, Rahimyarkhan for the murder of one Jahangir. He was acquitted of the charge vide judgment, dated 15-8-1988 passed by the learned trial Court.
2. The State has filed the instant appeal which was admitted to regular hearing by this Court on 14- 4-1990.
3. The facts as disclosed by the prosecution during the trial consists of two parts. The first part pertains to the background of the ownership and possession of the agricultural land of the complainant, accused and one Muhammad Ashraf and the cause for dispute between the parties.
The second part relates to the immediate cause and the manner of the occurrence which was the subject-matter of F.I.R. No, 100, dated 12-5-1986 registered under section 302, P.P.C. At Police Station, Saddar, Rahimyarkhan.- ' The facts forming the background of the case are that about 9 years prior to the occurrence, Ghulam Muhammad complainant (P.W.5) and his brother Ghulam Nabi had purchased one square of land bearing Rectangle No,467/16 Killas Nos. 1 to 10 from Farooq Ahmad son of Muhammad Ashraf. On account of some civil litigation, Ghulam Nabi had re-transferred his half share in the rectangle to Muhammad Ashraf. However, Ghulam Muhammad complainant continued to remain owner in possession of his half share in the said land. The share of the complainant bears Killas Nos. 1 to 5 while the share transferred to Muhammad Ashraf bears Killas Nos. 6 to 10. There was a common Khal between the land of the complainant and the abovesaid land of Muhammad Ashraf and both the parties irrigated their respective lands from that Khal. It may be mentioned that the Khal (watercourse) was not sanctioned by any Canal Authorities nor any official Warabandi was made.
' The immediate cause of the occurrence has been narrated as under:- "On 13-5-1986, the complainant had a turn of water at about 2.00 a.m. On 12-5-1986 at about 10.00 a.m. Hasnat Ahmad accused son of Gulistan who is also real maternal nephew of complainant had dismantled a portion of that watercourse. He had sent Muhammad Akhtar, Abdul Rauf sons of Ghulam Hussain to Gulistan Khan and Muhammad Ashraf in Rahimyarkhan so that they should advise Hasnat Ahmad to refrain from the same. According to the prosecution case, at about 2.00 p.m. Gulistan Khan, Muhammad Ashraf, Zafar-ul-Haq, Mazhar-ul-Haq sons of Muhammad Asrhaf came to Chak No, 124/P and told Muhammad Boota son of Qasim P.W.6 that as the complainant harassed their tenants, they would not allow him to take water from the said watercourse. The complainant then took his son Muhammad Jahangir deceased, his tenant' Muhammad Boota P.W.6, Sadiq, Ramzan P.W.7, Talib Hussain and Sardar Muhammad sons of Muhariunad Sadiq alongwith him and went to the dismantled Khal situate in Killa No, 10 Rectangle No,467/16 and started digging out and repair the watercourse. At about 5-30 p.m. The accused came there on a tractor from southern side and started dismantling the Khal from middle of Killa No,6, upon which, the complainant, his son Jehangir, Muhammad Boota, Muhammad Sadiq and Muhammad Ramzan reached the spot. In the meantime, Gulistan Khan, Muhammad Ashraf, Zafar-ul-Haq and Mazhar-ul-Haq came there who were standing on a Rajbah with their motorcycle. Muhammad Jehangir deceased asked Hasnat Ahmad not to dismantle the watercourse, upon which, Gulistan Khan and Zafar-ul-Haq had shouted a Lalkara to at Ahmad accused to tire shot at Muhammad Jehangir deceased. The accused got down from the tractor and fired with his revolver at Muhammad Jehangir which hit him in front of his left shoulder and close to the chest, who fell down. The complainant caught hold of Hasnat Ahmad from behind and Muhammad Ramzan had snatched .32 bore revolver from him. Hasnat Ahmad freed himself by giving him a push and he fell down.
' Gulistan Khan, Zafar-ul-Haq, Mazhar-ul-Haq and Muhammad Ashraf went towards Rahimyarkhan on their motorcycle while the accused Hasnat Ahmad also went towards Rahimyarkhan alongwith the tractor. He went towards his son Jehangir who had already succumbed to his injuries at the spot. He while leaving behind the dead body went to the Police Station alongwith his nephew Amjid Ali, Ch. Ali Sher, Ex.-Chairman and Ghulam Muhammad. He had produced .32 bore revolver P.1 to the police which was snatched from the accused and had lodged the report Exh. P.C."
4. P. W .9 Muhammad Bisharat, Inspector/S.H.O. Recorded the F.I.R. Exh.P.C. On the statement of Ghulam Muhammad P.W.5 on 12-5-1986. On the same day, P.W.5 had produced revolver P.1 which was unloaded by him and found crime empty P.2 and missed round P.3 in the chamber of revolver, which were made into sealed parcels and taken into possession vide memo. Exh.P.D. Going to the spot, the Investigating Officer prepared the injury statement Exh.P.G. And inquest report Exh. P.H.
And sent the dead body to the mortuary for autopsy. On 13-5-1986, Arjmand, Constable P.W.2 produced the clothes of the deceased and a parcel containing lead of bullet which were taken into possession vide memo. Exh.P.E. On 14-5-1986, he arrested the accused Hasnat Ahmad. He had injuries on his person and got him medically examined by the Doctor. He got prepared the site plans of the place of occurrence from Mehar Ali Shah Patwari P.W.4 in duplicate vide Exh. P.R. And Exh. P.B./1. On 27-5-1986, Gulistan Khan father of the accused produced licence P.6 of the revolver which was taken into possession vide memo. Exh.P.F. Gulistan Khan, Muhammad Ashraf, Mazhar-ul- Haq and Zafar-ul-Haq co-accused were found innocent during the investigation. However, challan against Hasnat Ahmad was submitted in the Court.
5. P.W.1 Dr. Hafiz Khushi Muhammad conducted the autopsy on the dead body of Jehangir deceased on 13-5-1986 at about 10.00 a.m. And found an inlet wound about 3/4 c.m. x 3/4 c.m.
Going into chest .Cavity.- ' There were black margins on the upper left part of chest inner to shoulder about 12 c.m. Above the left nipple on the nipple line from clavicle. Neck was not dissected. There was a ' metallic pellet which was removed from the outer right chest wall against the 4th intercostal space.
' In his opinion, the death was caused due to shock and internal haemorrhage caused by fire-arm injury which was sufficient to cause death in the ordinary course of nature. The time that elapsed between injury and death was instantaneous and between death and post-mortem examination was about 14 hours. Exh. P.A. And Exh. P.A./1 are the reports of autopsy and its pictorial diagram.
6. The accused was charge-sheeted on 19-4-1988 under section 302, P.P.C. The accused pleaded not guilty, claimed for trial and desired to produce evidence.
' In order to prove its case, the prosecution examined P.W.1 Dr. Hafiz Khushi Muhammad, P.W.2 Muhammad Arjmand, Constable, P.W.3 Abbass Ali H.C., P.W.4 Mehar Ali Shah, Patwari, P.W.5 Ghulam Muhammad complainant, P.W.6 Muhammad Boota, P.W.7 Muhammad Ramzan, P.W.8 Ali Sher and P.W.9 Bisharat Ali, Inspector/Investigating Officer. Besides the exhibits referred to in para. 4 above, the prosecution placed on record the report of the Forensic Science Laboratory Exh. P.J., copy of complaint titled as "Noor Hussain v. Ghulam Muhammad" Exh. P.K. And statements of Noor Hussain and Hasnat Ahmad as Exh. P.L. And Exh. P.M. And closed their evidence.
7. The accused Hasnat Ahmad was examined under section 342, Cr.P.C. And he denied the allegations of the prosecution in toto. In answer to question No,14, as to why this case against him, he submitted as under:-- "the prosecution version of the occurrence is incorrect. I had got half a square of land from Farooq Ahmad son of Muhammad Ashraf on lease for 2 years prior to the occurrence. This land included Killas Nos 6 to 10 of Rectangle No,467/16 Ghulam Muhammad complainant and his son Jehangir deceased were annoyed over my getting the land of Farooq Ahmad on lease. On the day of occurrence I was ploughing land in Killa No,6 when at about 7.30 p.m. Jehangir deceased alongwith Ghulam Muhammad, Muhammad Boota, Ramzan, Muhammad Sadiq P.Ws., Sattar, Khushi Muhammad, Talib Hussain, Muhammad Aslam, Mehboob, Sardar, Jalal and Siddiq armed with sticks, hatchets and gun trespassed into Killa No,6 forcibly and stopped my tractor. They encircled me and attacked, as a result of which, I received as many as eight injuries. I fell down and found myself helpless. I apprehended death at the hands of Jehangir deceased and his companions. In order to save my life, I fired from the revolver in the air but accidentally the shot hit Jehangir deceased." He pleaded his innocence and produced in his defence four D.Ws. Namely D.W. Dr. Qambar Zia, D.W.2 Munir Ahmad, D.W.3 Ghulam Hussain, Petition Writer and Muhammad Aslam Ghazi, Advocate as D.W.4.
8. The learned trial Judge in view of the evidence produced by the prosecution, statement of the accused under section 342, Cr.P.C. And the defence evidence produced on behalf of the accused found that the prosecution has not been able to establish its case either through the ocular evidence, evidence of the recoveries or the medical evidence placed on the record. It also took note of the defence version as produced through D.W.1 to D.W.4 and agreed with the defence version of the self-defence of his person. Giving the accused the benefit of doubt, he was acquitted of the charge vide the impugned judgment, dated 15-8-1988.
9. This criminal appeal seeks to challenge the aforesaid judgment of acquittal on the ground that the learned trial Court had not appraised the ocular account produced by the prosecution in its correct perspective and that it was also in error in relying upon the defence evidence. The challenge was also thrown to the veracity of the affidavits allegedly sworn by the P.Ws. Wherein they had admitted that they were not present at the time of the occurrence. The opinion of the learned trial Judge regarding medical evidence whereby preference was given to the injury statement of the accused was also attacked.
10. We have heard the learned A.A.-G. For the State, Mr. A.R. Tayyib, Advocate for the complainant and Malik Dost Muhammad Awan, Advocate for the respondent/accused and closely examined the record with their assistance.
11. According to the eye-witness account furnished by Ghulam Muhammad P.W.5, Muhammad Boota P.W.6 and Muhammad Ramzan, P.W.7, the portion of the watercourse was dismantled by the accused on 12-5-1986 at about 10.00 a.m. According, to them, this dismantling took place in the portion of the watercourse in Killa No,10 of Rectangle No,467/16. According to the complainant, he alongwith Muhammad Jehangir deceased, Muhammad Boota P.W.6, Muhammad Ramzan P.W.7, Muhammad Sadiq, Talib Hussain and Sardar went at the spot to dig and repair the watercourse in Killa No,10. According to him, at about 5-30 p.m. The accused came on a tractor and started dismantling the dportion of the watercourse from the middle of Killa No,6. Upon this, all the aforementioned persons alongwith the complainant proceeded towards Killa No,6. P.W.6 and P.W.7 are quite consistent in this version. The manner in which the occurrence took place shall be discussed later, however, this fact becomes manifest from the prosecution evidence that the venue of occurrence was Killa No,6 which was admittedly owned by Muhammad Ashraf and was in cultivating possession of the accused on Mustajari basis.
12. According to the prosecution version, when the complainant and other aforementioned persons confronted with the accused, he was on his tractor alone and that it was 5/6 minutes later that Gulistan Khan, Ashraf, Zafar-ul-Haq and Mazhar-ul-Haq also reached at the spot. These latter four accused persons were, however, declared innocent by the police and only Hasnat Ahmad respondent was challaned before the Court.
13. The location of the watercourse is also confirmed through the statement of Mehar Ali, Patwari P.W.4 who prepared the site plan Exh. P.B. And Exh.P.B./1 and stated that the area under the watercourse is in Killa No,6 and it runs towards Killa Nos. 7, 8, 9 and 10. It was also in the evidence of the eyewitnesses that after the accused had shot at the deceased, they had been able to snatch the revolver from the accused. It 4 also admitted that when they were digging and repairing the damaged watercourse in Killa No, 10, they had 5 Kassis with them. In fact, it was stated that Muhammad Sadiq, Muhammad Ramzan, Muhammad Boota, Muhammad Sardar and Talib Hussain had the Kassis. Upon the learning of dismantling of the watercourse in Killa No,6, all the above said persons including the complainant and deceased went directly to the spot. Obviously, when they had confronted the accused, they were all armed with at least 5 Kassis.
14. It is established from the occular evidence that the venue of occurrence was Killa No,6 which was admittedly owned by Muhammad Ashraf and was in cultivating possession of the accused. It is the stand of the prosecution that the complainant, the eyewitnesses and other persons mentioned in the F.I.R. Had themselves confronted the accused by going to Killa No,6. It can thus, be rightly concluded that it was more probable that the complainant party was the aggressor in the occurrence and that the occurrence did not take place as alleged by the prosecution.
15. Doubt has been further created in the veracity of ocular evidence by the production of affidavits dated 2-6-1986 of the complainant P.W.5, Muhammad Boota P.W.6, Muhammad Ramzan P.W.7 and Muhammad Sadiq. These very witnesses had deposed in their affidavits that they knew nothing of the occurrence and that they were not present at that time. In fact, these affidavits were relied upon by the accused/respondent during the proceedings of his post-arrest bail which were noticed by this COurt. Despite the fact that the deponents had denied the execution of the affidavits. His Lordship Sardar Muhammad Dogar, J. (as he then was) while dismissing the plea of complainant for cancellation of bail earlier granted to the accused observed in his order Exh. D.J.
As under:--- "On being asked the petitioner-complainant did not deny his signatures appearing on the affidavit.
The other three witnesses also did not deny of having thumb-marked the stamp papers on which their affidavits are written. Their stand, however, is that they had not sworn any affidavit and that their signatures and thumb-impressions had been obtained on plane papers. (In fact they had admitted the signatures and thumb-impression on being asked if they were prepared to have their signatures and thumb-impressions verified from the Finger Print Bureau). It is not the stage to give an authentic judgment about the correctness or otherwise of the contents of the affidavits. Enough to say that the affidavits, (the signatures and thumb-impressions, on which have not been denied by the witnesses) appear to have been attested on proper verification and recorded also on their dictation, after proper identification. (This fact is borne out from the affidavits sworn in by the respondent; Mr. Sarwar Akhtar, Advocate counsel for the petitioner before the lower Court, Mr. Muhammad Aslam Ghazi, Advocate Oath Commissioner, who attested the affidavits, Mr. Munir Ahmad, Stamp Vendor and Ghulam Hussain, Petition Writer."
' To arrive at this conclusion, tentative as it was, reliance was placed upon the affidavits of Muhammad Aslam Ghazi, Advocate/Oath Commissioner Munir Ahmad, Stamp Vendor and Ghulam Hussain, Petition Writer.
' During the course of trial, however, Munir Ahmad Stamp Vendor, Ghulam Hussain, i-eltion Writer and Muhammad Aslam Ghazi, Advocate/Oath Commissioner were produced in defence as D.W.2, D.W.3 and D.W.4 respectively. They proved the execution and verification of the affidavits.
The ocular evidence was denuded of any probative value by the production of these defence witnesses and the affidavits.
16. The evidence of recovery also does not support the prosecution. In the first place, the prosecution has not attempted to indicate the exact venue of occurrence, although, it is admitted that they confronted the accused in Killa No,6. No blood-stained earth was recovered. There is no prosecution evidence of blood spilling on the ground at the time of occurrence. Obviously, if according to the medical report Exh. P.A. And statement of Medical Officer. P.W.1, the death occurred instantaneously as a result of the fire-arm shot, blood must have fallen on the venue of the occurrence. Neither the Patwari P.W.4 nor the Investigating Officer P.W.9 deposed anything about the recovery of the bloodstained earth. The intention for this deliberate omission, as rightly pointed out by the learned counsel for the respondent was to suppress the real venue of occurrence (Killa No,6) which would have shown the complainant to be aggressor.
' The revolver P.1 allegedly snatched from the respondent soon after ,the occurrence was produced by the complainant before the police at the time of lodging of the F.I.R. The, revolver, the empty and a missed bullet were made into a sealed parcel Exh. P.D. According to the report of the Forensic Science Laboratory Exh. P.J., the crime empty did not match with .32 bore revolver P.1. This would indicate that the revolver P.1 was not used in the occurrence and that some other weapon of offence was used.
' This evidence of recovery also creates sufficient doubt in the prosecution version.
17. The medical evidence recorded by account inasmuch as the Medical Officer had P.W.1 has not been supported by the ocular stated, as expected in normal course of nature that blood would have come out of the wound of the deceased after receiving the, injury. The eye-witnesses, on the other hand, have not stated anything about the spilling of blood at the time of occurrence. The medical evidence produced by defence in the form of D.W.1 confirms as many as 8 injuries upon the person of the accused/respondent. This medical examination was conducted on 14-5-1986 and the probable time of infliction of these injuries was given as within 24 hours to 72 hours. This would tally with the time of occurrence:'
18.What is described as the motive of offence, is in fact, only a cause of the occurrence and cannot be used in support of the prosecution story as the alleged motive. There is yet another feature of the case which falsifies the prosecution version. According to the F.I.R., Gulistan Khan, Muhammad Ashraf, Zafar-ul-Haq and Mazhar-ul-Haq were also nominated and Lalkara was attributed to Gulistan Khan and Zafar-ul-Haq. During the investigation, however, all these four co-accused were found innocent by the police. The learned Additional Sessions Judge rejected the plea of the complainant to incriminate the said co-accused vide order, dated 16-11-1987. The revision filed .By the complainant before this Court was also dismissed vide order Exh. D.K.
19.There is no denying the fact that the occurrence of 12-5-1986 did take place which resulted in the loss of life of Muhammad Jehangir deceased. However, after examining all the aspects of the case, it is concluded that the prosecution has failed to prove its case beyond all shadow of doubt. The version of the respondent that he acted in self-defence appear to be more plausible in view of the analysis of the evidence made hereinbefore. The learned trial Judge was rightly persuaded to believe the version of self-defence of accused and to give him the benefit of doubt.
20.In view of the above discussion, we find no merit in this appeal which is hereby dismissed.