' M. NAEEMUUAH KHAN SHERWANI, J.---The way in which appeal arises is this. The respondents, namely, Muhammad Younas, Muhammad Bashir sons of Noor Din, Muhammad Nazeer son of Shah Muhammad and Muhammad Saleem son of Fazal Muhammad were tried by a learned Additional Sessions Judge at Faisalabad for committing mactation of Aziz-ur-Rehman and murderous assault upon Abdul Rehman and Abdul Aziz after criminally trespassing into Dera of Saif-ur- Rehman complainant Learned trial Judge by virtue of his judgment dated 28-5-1999, found them not guilty and acquitted them of the charges by giving them the benefit of doubt.
2. The State through Public Prosecutor Punjab by filing this appeal, had called in question acquittal of the respondents, which was admitted to regular hearing on 14-2-1993 and notice was issued to the respondents.
3. Occurrence of the alleged incident had taken place on 31-10-1988 about 10-00 .p.m. Within the revenue estate of Chak No,202/RB, situate at a distance of eight kilometers from Police Station Nishatabad, Faisalabad. The said occurrence was reported by Saif-ur-Rehman-complainant (P.W.11), brother of Aziz-ur-Rehman deceased to Muhammad Din S.I (P.W.15) at Railway Crossing Bhaiwala on 1-11-1998 at 12-30 a.m. (night). Who as per his dictation reduced into writing complaint (Exh.P.B.) and dispatched the same to the police station through some constable for formal registration of a case. Consequent upon receipt thereof at the police station. Bashir Ahmad. A.S.I.
(P.W.2) drew up formal F.I.R. (Exh.P.B.1) on the same night at 1-00 a.m. Correctly . Without any addition or substraction on his part.
4. The prosecution story as revealed through the F.I.R. (Exh.P.B/1) is like this:- ' Saif-ur-Rehman, complainant is employed in Nishat Texile Mills. On the fateful night at about 10-00 p.m., he along with his brother Aziz-ur-Rehman, father Abdul Rehman and Abdul Aziz son of Ghulam Ahmad, residents of the Village, was available at his cattle-shed and they were busying in talking with each other in the light of bulb. All of a sudden, Bashir alias Bashira, Younas alias Jona, armed with .12-bore guns. Muhammad Nazeer alias Jeera, carrying a Sota and Muhammad Saleem, armed with a gun entered into the Dera. Bashir alias Bashira exhorted a Lalkara to the effect that today they will not spare Aziz-ur-Rehman and teach him a lesson for not leaving the land. Muhammad Younas was the first who fired at Aziz-ur-Rehman hitting him on front of his chest. Next was Muhammad Saleem, who fired a shot Azizur-Rehman, which landed on his right arm. Aziz-ur-Rehman ran inside the Kotha to save his life, but Bashir alias Bashira followed him and made a shot hitting him on his left armpit. Abdul Rehman and Abdul Aziz P.Ws came forward to save Aziz-ur-Rehman, but Muhammad Nazeer respondent delivered three Sota blows to Abdul Rehman P.W., which landed on his right hand, left thigh and back. He also inflicted to two Sota blows on the person of Abdul Aziz P.W. Hitting his right buttock and back of his right hand. The complainant while standing at some distance raised commotion, which attracted Abdul Rehman son of Umar Din and Ata Muhammad son of Muhammad Bakhsh P.Ws., who witnessed the occurrence. The accused decamped from the spot while still firing in the air.
' Reason for the outbreak of the occurrence was that the cattle-shed was in possession of the complainant party and they had got a stay order from this Court. Said land was purchased by Muhammad Boota. Husband of Mst.Razia Bibi, which is in the name of Mst.Razia Bibni. Bashir alias Bashira and Muhammad Younas respondent, who are brother-in-law of said Muhammad Boota, helped their sister Mst. Razia Bibi to get possession of land and in pursuance of this object, they in furtherance of their common intention committed murder of Aziz- ur-Rehman deceased.
According to the complainant. Mst. Razia Bibi abetted the crime in question. Leaving Abdul Rehman and Abdul Aziz P.Ws. To guard against the dead body, the complainant left for the police station and came across Muhammad Din S.I. (P.W.15) at Railway Crossing Bhaiwala and set the police machinery into motion by lodging the above-said F.I.R.
5. Succeeding registration of case, Muhammad Din, S.I (P.W.15) forthwith took over the uphill task of investigation and immediately proceeded to the venue of occurrence. He conducted routine investigation, like inspection of the spot, collection of blood-stained soil, empties, and sending the dead body to the mortuary for autopsy purpose. Respondents, namely, Muhammad Younas, Muhammad Saleem and Muhammad Nazeer could be arrested by him on .13-11-1988. They were subjected to interrogation, during course of which Muhammad Saleem, Muhammad Younas and Nazeer got recovered guns (P.6 and P.7) and a Sota (P.8) from their houses, which were made into separate sealed parcels and taken into possession by him through memos. Exhs .P.H.P.I. And P.J .
Respectively, duly attested by Khurshid Ahmad (P.W.10) and Muhammad Shafi P.W. (not produced).
He recorded statements of the relevant witnesses under section 161 Cr.dP.C. Thereafter, investigation was transferred from him. Rest of the investigation was conducted by Abdul Majeed.
S.I. (P.W.16). After finalization of investigation, challan was prepared and submitted before the Court for trial of the respondents in accordance with law.
6. Consequent upon receipt of challan, the trial Court observed all the legal 4 formalities, framed charge and put the same to the respondents, to which they pleaded not guilty and claimed to be tried as such. At this stage, the prosecution was called upon to adduce the best possible evidence available within its power and domain to prove charge against the respondents. In pursuance of said direction, the prosecution ventured to produce as many as sixteen witnesses in all to achieve success in the trial.
7. Out of the whole lot evidence of Dr. Abdul Sattar (P. W.1), Dr. Abdul Mannan (P.W.7). Dr. Muhammad Nazir Chatha (P.W.8), Khurshid Ahmad (P.W.10) Saif-urRehman-complainant (P.W.11), Abdul Aziz (P.W.12) and Abdul Rehman (P.W.13) is of most significance, whereas evidence of remaining witnesses is of formal nature and is not required to be discussed.
8. Learned prosecutor gave up remaining witnesses being unnecessary and after tendering in evidence reports of the Chemcial Examiner, Serologist and Forensic Science Laboratory (Exhs.P.O, P.P. And P.Q)* declared the prosecution case close.
9. The respondents whilst under examination under section 342 Cr.P.C. Proclaimed their profound innocence in the matter and alleged false involvement in the case due to animosity. They opted not to make statements on oath as envisaged by the relevant provisions of section 340(2) Cr.P.C., in disproof of the accusations levelled against them. Muhammad Younas and Muhammad Bashir respondents .Opted to adduce evidence in defence. They got examined Mukhtar Ali, Inspector/S.H.O. And Dr. Iftikhar Ahmad Peracha as D.Ws.1 and 2, respectively.
10. Trial culminated into acquittal of the respondents, as aforementioned.
11. Learned counsel for the appellant strenuously argued that learned trial Judge had not appreciated evidence in its true perspective and acquittal of the respondents has resulted in grave miscarriage of justice.
12. Learned counsel for the respondents forcefully argued that the prosecution evidence is pregnant with innumerable defects; that ocular account is in serious conflict with the medical evidence; that Muhammad Younas and Muhammad Bashir respondents, who were brothers inter se were declared innocent by the police during course of investigation and their innocence was amply proved by the production of Mukhtar Ahmad. Inspector/S.H.0 (D. W.1.); that motive was disbelieved by the trial Court; that false recoveries were planted upon the respondents and that report of Forensic Science Laboratory was in the negative. He adds that the complainant side had assumed aggressive role because they wanted to acquire forcible possession of the land in possession of the respondents, who were well within their right to act accordingly. He ends his arguments while submitting that acquittal of the respondents was perfectly justified under the law.
13. Both the sides have been heard at length. We have also perused the record in the light of respective arguments of learned counsel for both the sides. We have also gone through the judgment. Our scrutiny of evidence reveals that the learned trial Judge after taking everything into his full consideration rightly discarded motive evidence. The prosecution has failed to prove motive. Muhammad Bashir-respondent adopted following plea while making his statement under section 342, Cr.P.C.
"I am innocent. In fact on the day of occurrence at about evening time, the complainant party including the deceased and injured P.W. Along with others came armed to the disputed plot in order to take possession forcibly from our party and in that scuffle myself and my companion Ataullah of Sikandarpur who had come to see me, received the injuries and we resisted and the complainant party could not take possession of disputed plot and ran away. After this incident, myself and Ataullah went to lodge the report about the aggression of 'complainant party at the police stations where from we were directed to get overselves to medically examine first, whereupon, we proceeded to D.H.Q Hospital , Faisalabad for Medico-legal examination where myself and Ataullah aforesaid were medically examined by the Medical Officer at about 10-00 P.M.
To 10-30 P.M. And after getting M.L.Rs we went to Police Station Nishatabad to lodge report but on reaching there, we learnt that some new incident took place in the disputed plot when the complainant party again came to the spot to take the possession forcibly and all the police officers had gone to the spot in that connection. We also proceeded to the place of occurrence and we narrated the story of aggression of the complainant party to the police at the spot and also produced M.L.Rs but the police inspite of our repeated requests did not take any legal action against the complainant party but instead with the connivance of complainant party falsely involved us in a false story of aggression. I and my brother Younis were declared innocent by the police".
' Muhammad Younas respondent proclaimed his absolute innocence in the matter. He controverted accusations brought against him. He emphatically denied the factum of recovery of gun (P.7) from him. Likewise Muhammad Saleem-respondent denied the factum of recovery of gun (P.6) at his instance. Muhammad Nazir-respondent too controverted charges brought against him and alleged his false implication in his case. He also denied having led to the recovery of Sota (P.8).
Mukhtar Ali, Inspector/S.H.0 (D.W.1), who carried out discreet investigation in this case stated that Muhammad Younas and Muhammad Bashir respondents were neither present at the spot at the time of occurrence nor participated in the same. The ideally specific plea adopted by Muhammad Bashir and Muhammad Younas-resoi1ents was proved by Mukhtar Ali. Inspector/S.H.O. (D.W.1) and Dr. Iftikhar Ahmad Paracha (D.W.2). The credibility of their statements cannot be, doubted a bit.
They are truthful witnesses and had no grudge or grouse against the complainant side. We take them as truthful witnesses.
14. No documentary evidence was adduced by the complainant side to prove factum of possession over the disputed plot. Muhammad Din S.I. (P.W.15) admitted in his cross-examination that the complainant party produced no documentary evidence to prove factum of possession over the disputed Ahata. The statement of Saif-ur-Rehman, complainant contained mutually contradictory and inconsistent passages. So he ceased to be reliable witness. We are satisfied with the plea of alibi raised by Muhammad Bashir and Muhammad Younas-respondents.
15. Careful examination of contents of post-mortem report (Exh.P.A) reveals that there were two fire-arm injuries on the person of the deceased described at No,,1 and 2. Both these injuries had been attributed to Muhammad Younas and Muhammad 'Bashir respondents. According to the.
F.I.R. Muhammad Younas fired at Aziz-ur-Rehman, which hit him on front of his chest and after entering into the room Muhammad Bashir fired at the deceased, which struck on the lower side of his left armpit. Dr. Abdul Sattar (P.W.1) has clearly stated that both the injuries were the result of one fire as injury No,1 was the entry wound and injury No,2 was its exit wound. Doctor also stated that all the injuries sustained by the deceased could be caused by the discharge of a single shot. No trail of blood could be collected by the Investigating Officer in between the place where deceased received injury and fell down after covering some distance. On receipt of first injury, according to opinion of the doctor, he was not in a position to perform volitional acts and this falsifies the ocular account. The Investigating Officer has also admitted in cross-examination that the prosecution witnesses did not point out or show him any bulb inside the room. Abdul Rehman son of Ibrahn, father of Aziz-ur-Rehman deceased an injured eye-witness, was never produced by the prosecution. This is a major flaw in the prosecution case.
16. No recovery could be effected by the police from Muhammad Bashir-respondent. Two empties were collected from the place of occurrence. Which were made into a parcel vide memc.. (Exh.P.L).
Saif-ur-Rehman (P.W.11) admitted in cross-examination that only one fire was made inside the room and the gun was not reloaded by the accused and stated that two empties were collected from inside the room. He admitted that since recovery of two empties have been shown from room by the police, so he opted to make that statement. Two guns were recovered froth Muhammad Younas and Muhammad Saleem-respondents. They were made into parcels and were sent to Forensic Science Laboratory (Exh.P.Q) is in the negative.
17. In a case like this the role of an investigator was of great significance, Muhammad Amlish A.S.P City Faisalabad also investigated this case. Muhammad. Bashir and Muhammad Younas respondents were given clean slate by him. Abdul Rehman son of Ibrahim to whom Muhammad Nazeer-respondent allegedly inflicted three injuries by means of a Sota has not been produced by the prosecution. The defence version appears to be nearer to truth that the complainant party came to take forcibly possession of the plot and the deceased was fired at by someone present in the Haveli who subsequently died. This is night time occurrence. Identification of the assailant was also in doubt. We failed to discover any major defect or flaw in the impugned judgment which may be considered as sufficient ground for conversion of acquittal into conviction.
18. For all these reasons we dismiss this appeal.,