1. ' This judgment will dispose of Criminal Appeal No,184 of 2002 filed by Moazzam Amin, appellant and Criminal Appeal No,209 of 2002 filed by Muhammad Javed, appellants who were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and to pay Rs,two Lacs each under section 544-A, Cr.P.C. The conviction and sentence was recorded by learned Additional Sessions Judge, Gujranwala vide judgment, dated 14-12-2001.
2. Briefly stated the facts of the case are that on 11-9-2000 at 4-30 a.m. When the lights outside the house were on, Muhammad Aqeel son of the complainant Muhammad Nazir was going to Haveli as usual for milking the buffaloes. The complainant and his other son namely Muhammad Munir accompanied Muhammad Aged deceased saw that Ghulam Farid, Javed, Moazzam Amin armed with pistols in furtherance of their common intention sitting near the western wall of Haveli of the complainant. Sooner Muhammad Aqeel opened the door of the Haveli, Fayyaz Ahinad raised Lalkara not to spare Agee upon which Ghulam Fareed, Javaid Moazzam fired at Aqeel with their respective weapons hitting Aqeel on different parts of his body and he died of the injuries at the spot. On hearing the noise of fire-shots, many people reached at the spot. The occurrence was witnessed by the complainant alongwith Shabbir Ahmad all tried to apprehend the accused persons but they fled away while firing. The occurrence was alleged to have been committed on the abetment of Sameena, Ghazala, Abida and Muhammad Nawaz.
2. ' The motive alleged was that a few days prior to the present occurrence, on the clinic of Dr. Muhammad Ihsan, Muhammad Nawaz and his co-accused threatened the complainant for making statement in the newspaper against Nawaz, accused.
3. Investigation of the case was taken up by Faqir Ullah, S.-I. (P.W.12). After registration of the formal F.I.R., he went to the place of occurrence, prepared inquest report Exh.P.H. Injury statement Exh.P.J., took into possession the blood-stained earth vide memo. Exh.P.F, a pair of the shoes was also secured vide memo. Exh.P.L. And the investigation was then taken over by Safdar Ali, Inspector (P.W.13). He arrested Javed accused on 21-1-2001 and Nawaz on 23-1-2001. After completion of the investigation, all the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 14 witnesses in all. Then the learned S.P.P. Tendered in evidence report of the Chemical Examiner Exh.P.M., report of the Serologist Exh.P.N.
3. And closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, Ghulam Fareed, Moazzam Amin and Javed were found to be accused and were convicted and sentenced.
4. Rest of the accused were acquitted of the charge.
5. Learned counsel for the appellant in Criminal Appeal No,209 of 2002 submits that trial Court has rightly disbelieved the acquisition qua abetment as well as motive against the present appellants; Muhammad Nawaz on whose abetment, according to case of the prosecution, the murder was committed, has been acquitted by the trial Court; during the course of investigation, the convict appellants were found innocent and placed in Column No,2 of the report under section 173, Cr.P.C.
5. The first version of the appellant was of false implication and it remained the same till conclusion of the trial, neither any crime-empty was recovered from the spot nor any incriminating weapon of offence was recovered from the appellant though they exhausted the full period of remand; net was thrown so wide that all near and dear ones of Muhammad Nawaz, the acquitted accused have been involved; according to complainant before the trial Court, 5/6 shots were fired by the accused on the person of the deceased but there are only two entry wounds on the person of the deceased, so medical evidence, during the course of investigation, one Amanat Ali was also arrested but acquitted by the trial Court; at the place of occurrence, there was no such place where ambush could have been made by the accused because the road is straight one and Haveli and house of the complainant is opposite to each other, the purpose of killing the deceased in early hours of the morning was to conceal the identity of the accused but the way the F.I.R. Stands lodged, it shows that the prosecution has failed to prove its case against the appellant; there are material contradictions in the statements of the P.Ws.; in fact it was unwitnessed occurrence and that according to the P.Ws., they followed the accused persons after the occurrence who fired but none of the P.Ws. Was injured which negates the prosecution story.
6. ' Learned counsel for appellant in Criminal Appeal No,209 of 2002 adopts the arguments advanced by learned counsel for Moazzam Amin, appellant.
7. ' Leaned counsel for the State submits that discrepancies and contradictions pointed out by learned counsel for the appellants in the statements of the eye-witnesses namely P.Ws.10 and 11 are minor and do not affect the essence of case of the prosecution in terms of occurrence of the crime and participation of the appellants. He submits that the trial Court, has rightly discarded the medical evidence furnished by Dr. Muhammad Fayyaz (P.W.5) with the observation that he has tried to cushonestly favor the accused. According to learned counsel, ocular evidence if convincing and even if it is in contradiction with medical evidence, ocular evidence has to stand as medical evidence is rule of prudence. Concluding his submissions, learned counsel submits that there are three entry wounds on the person of the deceased and that the doctor was himself mistaken and had given only two entry wounds, in fact, ocular account is fully corroborated by medical evidence.
8. ' I have heard learned counsel for the parties and have gone through the record. Eight accused including the present two appellants were named in the F.I.R. Ghulam Farid is still R.O. While Muhammad Fayyaz, Samina Nawaz, Ghazala and Abida and Muhammad Nawaz were acquitted by the trial Court. Muhammad Fayyaz was attributed the role of Lalkara while the remaining four accused named above were charged with offence of abetment. No appeal against acquittal of above named five accused was filed either by the State or the complainant. It has come on record that complainant after lodging the F.I.R., also made a supplementary statement naming one Amanat Ali as accused who though was challaned alongwith accused named in the F.I.R. But was acquitted by the trial Court.
9. ' The occurrence had taken place at 4-30 a.m. On 11-9-2000 when it was dark. Although in the written complaint submitted by the complainant before the S.H.O., he had mentioned about the electricity bulb at the time of occurrence but the same is negated from the fact.That in the first inspection note which is always prepared by the Investigating Officer on his first visit of the spot, there is no mention of electric bulb. Even in the rough site plan Exh.P.L., no source of light has been mentioned by the Investigating Officer though in the site plans Exh.P.C. And Exh.P.C./1 prepared by the draftsman at point "D" electric bulb has been mentioned. The draftsman had taken note on 14- 9-2000 and submitted the site plans Exhs.P.C. And P.C./1 on 19-9-2000. In my opinion, at point "D" the electric bulb, was shown in order to corroborate the version of the complainant given in the written complaint.
10. ' Dr. Muhammad Fayyaz (P.W.5) conducted post-mortem examination on the dead body of the deceased at 5-30 a.m. On 11-9-2000 while according to case of the prosecution, the occurrence had taken place at 4-30 a.m. The time between the injuries and death was immediate while between death and post-mortem was 12 to 18 hours. If the same is kept in mind, then the occurrence could had taken place at any time, may be in the mid of night. At this stage, I may reproduce the injuries on the person of the deceased:--
(1) Fire-arm lacerated wound of entry 1 x 1 c.m. Inverted margins going deep on back of left forearm middle part.
(2) Fire-arm lacerated wound of exit 1-1/4 x 1-1/4 c.m. On inner side of left forearms middle part with everted margins.
11. (3)Fire-arm lacerated wound of entry 1 x 1 c.m. Inverted margins going under the skin in front of left arm upper part 13 c.m. Below top of left shoulder.
12. (4)Fire-arm lacerated wound of exit 1-1/4 x 1-1/4 c.m. Everted margins subcutaneous tissue was coming out of wound on inner side of left arm upper part 3 c.m. Inner to injury No,3.
13. (5)Fire-arm lacerated wound of re-entry 1-1/4 x 1-1/4 c.m. Inverted margins going deep on outer side of left chest upper part in mid auxiliary lines.
(6) Fire-arms lacerated wound of exit 1-1/2 x 1-1/2 c.m. Everted margins on outer side of right chest upper part, subcutaneous tissue was coming out of the wound at mid auxiliary line 12 c.m. Outer to right nipple.
(7) Fire-arm .Lacerated wound of re-entry 1-3/4 x 1-3/4 c.m. Inverted margins going deep on inner side of right arm middle and upper part.
(8) Fire-arm lacerated wound of exit 1-3/4 x 1-3/4 c.m. Everted margins on outer side of right arm middle part,"
14. ' A bare perusal of the abovesaid injuries would show that injury No,1 is entry wound while injury No,2 is exit wound. Similarly, injury No,3 is entry while injury No,4 is exit. Injury No,5 is re-entry and six is again an exit. Injury No,7 is re-entry and injury No,8 is exit. I have also gone through the pictorial diagram prepared by the doctor which shows that injury No,5 which was re-entry thereafter travelled towards right side of chest and injury No,6 was exit wound. Thereafter this exit wound created an entry wound, that is injury No,7 and injury No,8 is exit. The doctor has also shown an arrow going towards right side of chest of the deceased after injury No,5. To my mind, there were two entry wounds but according to learned counsel for the State in fact there were 3 entry wounds.
15. If the doctor was favoring the accused, he could have been declared hostile and cross-examined but this was never done, so the remarks given by the trial Court regarding conduct of the doctor are uncalled for.
16. ' According to case of the prosecution, 5/6 shots were fired by the accused which hit the deceased liut even learned counsel for the State did not exceed the shots from three. Not a single empty,was recovered from the spot. The complainant also stated before the trial Court that some of the bullets hit wall of the Haveli but there is no bullet mark either shown in the first inspection note of the site Exh.P.L. And site plans Exh.P.C. And Exh.P.C./1.
17. ' The appellants were arrested by the police. They remained on physical remand but nothing incriminating weapon was recovered from them. They were also found innocent by the police and placed in Column No,2 of the report under section 173, Cr.P.C. No doubt opinion of the police is not binding upon the Courts but in the peculiar facts and circumstances of this case, it is a relevant fact. No motive whatsoever was attributed to the present appellant so there was no reason for them to participate in the occurrence. The main accused namely Muhammad Nawaz, against whom the motive laid has been acquitted by the trial Court. The only fault of the present appellants was that they were related to Muhammad Nawaz, acquitted accused. This fact has come on record through the evidence of P.Ws. 10 and 11. On the same set of evidence, 5 co-accused of the appellants have been acquitted. A pair of shoes was recovered by the police from the place of occurrence but it was never investigated as to whom it belonged. During post-mortem examination, the doctor found mud on the dead body of the deceased when both the eye- witnesses deposed that body of the deceased was not smeared with mud. P.W.13 Safdar Ali, Inspector had stated that during the course of investigation, it came to his knowledge that both the appellants were in custody of the earlier Investigating Officer and he wrongly declared them P.Os.
18. Amanat Ali was also challaned but acquitted by the trial Court. It was also the case of the complainant that the accused when left the spot, the complainant party chased and the accused fired but none from the complainant side received a single injury.
19. ' I would not like to discuss merit or demerits of the case further because the trial of Ghulam Farid, one of the accused is in progress and any observation made may not prejudice the case of either party.
20. ' Having attended to the submissions made by learned counsel for both the sides and going through the evidence on record, I am of the considered opinion that case of the prosecution to the extent of present appellants is of doubtful nature. Law of the land is that whenever doubt arises, the benefit of that has to go to accused not as a grace but as a matter of right. Applying the said principle of law, I accept both the appeals filed by appellants and acquit them of the charge. The conviction and sentence recorded against both the appellants by the trial Court is set aside. Both the appellants namely Moazzam Amin and Muhammad Javed are in jail. They shall be released forthwith if not required to be detained in any other case.