Appellant Iqrar Hussain, alongwith Asmat Bibi accused was tried for the murder of one Ghulam Abbas in case F.I.R. No.266 of 1997, dated 13-9-1997 registered under sections 148/302/452/149, P.P.C. At Police Station Ahmad Nagar, District Gujranwala by the Special Judge (Suppression of Terrorist Act, 1975), Gujranwala who vide judgment, dated 27-2-2001 while acquitted Mst. Asmat Bibi accused, convicted and sentenced the appellant as under:--- Under section 148, P.P.C.
Two years R.I. And a fine of Rs.5,000 or in default whereof to suffer six months R.I.
Under sections 452/149, P.P.C.
Five years R.I. And to pay a fine of Rs.10,000 or in default whereof to undergo further R.I. For one year.
Under sections 302(b)/149, P. P. C.
Imprisonment for life and to pay a compensation amounting to Rs. One lac, under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default whereof to suffer six months' S.1.
All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Challenging his conviction and sentence the appellant filed the instant appeal which is being disposed of by this judgment.
3. The facts of the prosecution case as narrated in the F.I.R. Exh.PA/1 are that on 13-9-1997 at about 5-15 p.m. Complainant Inayat Ullah alongwith his son Ghulam Abbas deceased and daughter-in- law (Bahoo) Mst. Shagufta Parveen was presen in his residential house. Ghualm Abbas deceased was sitting on a cot when all of a sudden Maqbool Hussain accused (since dead) armed with 222 bore, Mohsin Ali Shah and Ameer Ali Shah accused (P.Os.) armed with 7 MM rifles, Mst. Zohra Bibt accused (P.O.) and Mst. Mobina Bibi accused (since dead) armed with pistols, Haji "Sala" of Ameer Ali, armed with 7MM rifle and Mst. Asmat Bibi accused entered in the house. Mst. Asmat Bibi raised Lalkara that Ghualm Abbas deceased be taught a lesson of helping Kazim Ali Shah, the murderer of her sons whereupon all the accused with their respective weapons started indistcriminate firing.
The tire shots hit Ghualm Abbas deceased on his different parts and he fell on the cot. The complainant raised hue and cry, which attracted Tariq Mehmood and Ijaz Ahmad P.Ws. Who also saw the occurrence and requested the accused, upon which the accused fled away while firing.
Ghulam Abbas succumbed to the injuries at the spot.
4. On the same dad upon receiving information of the above-said occurrence Nasir Khan, S.- I./S.H.O. P.W.9 reached at Deh Khewawali, where complainant presented a written application Exh.PA which was sent to police station for registration of formal F.I.R. Exh.PA/1. Thereafter the police officer proceeded to the spot and after examining the dead body prepared necessary documents and sent the dead body to the mortuary for post-mortem examination. He also collected 8 empty cartridges P.3/1-8, one of 7MM rifle and seven of .222 bore rifle, vide memo. Exh. PJ. During investigation on 1-10-1997 he recorded supplementary statement of complainant explaining that the person mentioned as Haji in the F.I.R. Was in fact Iqrar Hussain appellant. On 4-10-1997 Mst.
Asmat Bibi co-accused was arrested. On 15-10-1997 the police officer obtained non-bailable warrants of arrest of Maqbool Hussain, Ameer Ali, Mohsin Raza, Bina Bibi, Zohra Bibi and Iqrar Hussain from the Court of Ilaqa Magistrate and entrusted the same to Irshad, Constable for execution.
This case was also investigated by Sajid Nazir, S.-I. P.W.11. On 8-5-1998, the said Police Officer arrested appellant who was already declared as proclaimed offender. At the relevant time the appellant was carrying a Klashnikov which was taken into possession and a separate case under Arms Ordinance was registered. During investigation on 21-5-1998 the appellant led to the recovery of rifle P.2 and the same was taken into possession vide memo. Exh.P.C. After formal investigation the challan was submitted before the trial Court.
5. During the trial prosecution produced 13 witnesses to prove the charge against the appellant and his co---accused.
6. Inayat Ullah P.W.1 and Shagufta Parveen P. W .2 being the eye-witnesses of the occurrence, supported the prosecution case and narrated the circumstances under which the appellant alongwith other co-accused allegedly committed the murder of Ghualm Abbas deceased.
7. Sajjad Hussain, Constable P.W.6 was present when the appellant led to the recovery of 7MM rifle.
He also attested the recovery memos.
8. The post-mortem examination, on the dead body of Ghualm Abbas deceased, was conducted by Dr. Altaf Hussain Chaudhry, P.W.8 who observed the following injuries on his body:-- (1)Fire-arm entrance wound 1 x 1 c.m. x going deep blackening around margins inverted, in front and middle part of left upper arm, 6 c.m. Below on left axilla.
(2)Fire-arm exit wound 1.5 x. 1.5 . Margins everted on the inner side w left upper arm, this was communicated to injury No. 1.
(3)Fire-arm entrance wound 1 x 1 c.m. x going deep margins inverted blackening around on posterior aspect of right upper arm, 7 c.m. Below right axilla.
(4)Fire-arm exit wound 1.5 x 1.5 c.m. Margins everted on upper part of right upper arm on inner side, it is communicated to injury No.3.
(5)Fire-arm entrance wound 1 x 1 c.m. x going deep margins inverted and blackening around on outer aspect of right chest, 7 c.m. Below right axilla (6)Fire-arm exit wound 2 x 2 c.m margins everted on the outer aspect of left chest 10 c.m. Below left axilla, is communicated to injury No.5.
(7)Abraded area 4 x 3 c.m. On the back of right elbow-joint.
(8)Fire-arm touching wound 4 x 2 c.m. x bone deep bone visible with clinical fracture of right middle phalanx at its head.
(9)Fire-arm entrance wound 1 x 1 c.m. x going deep with inverted margins and blackening around on front and lower parts of abdomen 13 c.m. Below umbilicus and 2 c.m. Left to the midline.
(10) Fire-arm entrance wound 1 x 1 c.m. x going deep margins invested and blackening present on the front of elbow joint just 4 c.m. Below injury No. 9.
(11)Fire-arm exit wound 5 x 4 c.m. Margins everted on the lower part of acra-line just adjacent to perineum and communicated to injury. No. 10.
(12)Fire-arm entrance wound 1.5 x 1.5 c.m. x going deep margins inverted and blackening around on. The front of middle part of right thigh.
(13)Fire-arm entrance wound 1 x 1 c.m. x going deep margins inverted and balckening around on the inner side of right lower leg.
(14)Fire-arm exit wound 1.5 x 1.5 c.m. With margins inverted on the upper and outer side of right leg 5 c.m. Below right knee-joint, communicated to injury No.13.
(15)Abraded area 3 x 1 c.m. Just in front of left knee-joint.
The rest of the witnesses being of formal nature need not be discussed.
9. Learned S.P.P. Tendered in evidence reports of Chemical Examiner Exh.PZ, that of Serologist Exh.PAA and Forensic Science Laboratory Exh.PBB and closed the prosecution.
10. Learned trial Court also examined the appellant and his co-accused under section 342, Cr.P.C.
The appellant, while answering to the question "Why this case against you and why the P.Ws.
Deposed against you? Replied as under:--- "I have been involved in this false case due to relationship with Ameer Ali Shah (co-accused), who is the husband of my sister. My name is Iqrar Hussain, I never performed Hajj, nor I have been called as Haji. In fact, the co-accused Ameer Ali Shah (since P.O.) had contracted two marriages. My sister is the second were of Ameer Ali Shah (since P.O.). In-laws from first were of Ameer Ali Shah (since P.O.) were known as Haji. The complainant had enmity with Ameer Ali Shah (since P.O.) and his family members. I started helping/feeding of my sister and her children. Due to this, the complainant got annoyed because he just wanted to ruin the whole family of Ameer Ali Shah (since P.O.) specifically his children and were. The complainant in connivance with the other P.Ws., who are interested and inter-related witnesses got me involved in this false cae after a lapse of considerable time, as I was not nominated in the F.I.R. The complainant involved me in this case being transferred animus/malice."
Neither the appellant nor his co-accused made any statement under section 340(2), Cr.P.C. Nor produced any evidence in defence.
11. Learned trial Court after appraisal of evidence available on record, vide judgment, dated 27-2- 2001, convicted and sentenced to appellant as narrated in the earlier part of the judgment.
12. Learned counsel for the appellant submitted that it was an unseen occurrence; the appellant was involved in this case due to previous enmity with the complainant party; that the F.I.R. Was lodged at the spot after consultation; that the appellant was not named in the F.I.R. But was involved in this case subsequently; that he was never put to the rest of identification parade and in the absence of this piece of evidence the statements of both the eye-witnesses would be of no value; that the medical evidence is in direct conflict with the ocular account that the alleged recovery of 7MM rifle at the instance of appellant in the absence of any report from the Forensic Science Laboratory about the use of the same during the occurrence would be of no value. It was lastly argued that in the circumstances of this case, the impugned judgment was not sustainable.
Conversely, learned counsel for the State while supporting the judgment had vehemently opposed the instant appeal.
13. I have heard the learned counsel for the parties and with their assistance gone through the record minutely.
14. The entire case of the prosecution rests upon the statement of two eye-witnesses namely Inayat Ullah P.W.1 (father) and Mst. Shagufta Parveen P.W.2 (were) of the deceased respectively.
The enmity of these witnesses with the accused party is also established from the record. Both the said witnesses fall within the category of interested witness and for safer administration of justice to rely upon the- statements of these witnesses one must look for very strong corroborative piece of evidence.
Statedly, the F.I.R. In this case was got registered by Inayat Ullah appellant P.W.1 within one hour of the occurrence. This witness while deposing before the trial 6 Court admitted that the complainant Exh.P.A. Was drafted by Jameel Cheema, Advocate. His son-in-law, after consultation with his were.
Tariq Mehmood, Ijaz Ahmad and Irshad Ullah. Admittedly, Jameel Cheema, Advocate was residing at Wazirabad and was summoned by the complainant party after the occurrence. In the light of.
These B admitted facts the authenticity of F.I.R. Has become doubtful and it has also shaken the credibility of the prosecution case.
The appellant was not named in the F.I.R. Later on, after eighteen days of the occurrence a supplementary statement of the complainant was recorded. In this statement it was explained that the person named in the F.I.R. As Haji was in fact the present appellant. It is not clear from the record as to how and when the complainant came to know about the identity of the appellant.
According to the prosecution's own case at the time of occurrence the appellant was armed with 7MM rifle whereas the rest of the accused were armed with the weapons like 222 rifle etc. (None of them was armed with weapon like .12 bore gun). The post--mortem report of the deceased reveals that the Doctor recovered some pellets from the dead body. During cross-examination the doctor also admitted that all the fire-arm injuries on the person of deceased were caused by .12 bore fire- arm. The post-mortem report further reveals that fire-arm injuries had blackening around the wound but according to the site--plan firing was made from a distance more than seven feet.
During the investigation some empties which included empties of 7MM rifle, were recovered but none of the said empty matched with the weapon of the offence recovered from the appellant.
15. In the light of above discussed facts of the case it would be unsafe to rely upon the statement of interested eye-witnesses and in the circumstances, the appellant is entitled to get the benefit of doubt. Accordingly, the instant appeal is accepted and the conviction and sentence of the appellant is set aside and he is acquitted of the charge. The appellant shall be released, forthwith, if not required to be detained in any other case.