KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.981 of 1998 filed by Nasir Ahmad, appellant, who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs.50,000 as compensation, in default S.I. For six months by learned Additional Sessions Judge, Daska vide judgment dated 5-11-1998.
Murder Reference No.424 of 1998 for confirmation of death sentence or otherwise of the convict appellant alongwith Criminal Revision No.482 of 1998 filed by the complainant for enhancement of amount of compensation shall also be decided through this single judgment.
2. Occurrence in this case had taken place at 6-00 p.m. On 20-4-1995 at a distance of one kilometre from Police Station Sambrial, District Sialkot while the matter was reported by Ch. Hussain Nawaz on the same evening and the formal F.I.R. Exh.P.E. Was recorded at 6-30 p.m.
3. Briefly stated the facts of the case are that at about 6-00 p.m. On 20-4-1995 Ch. Hussain Nawaz, the complainant was present in his house when he was called by Rana Shaukat Ali and the complainant went outside the house. The complainant was busy in talking with Rana Shaukat when Shahid Nawaz and Hussain Nawaz were sitting at a open place in front of the house. Imran Khalid brought beverages and both Shahid Nawaz and Hassan Nawaz started drinking when in the meanwhile Nasir Ahmad while armed with a .30 bore pistol and Muhammad Yousaf empty- handed while raising Lalkaras came there. On seeing Shahid Nawaz, Muhammad Yousaf raised Lalkara that Shah Nawaz would be taught a lesson for having a quarrel with Nasir Ahmad.
Simultaneously, Nasir Ahmad fired a shot with his pistol which hit Shahid Nawaz on his chest towards left. The second shot fired by Nasir hit on the left eyebrow of Shahid. The injured fell down on the ground. Again Muhammad Yousaf raised a Lalkara that Shahid had to be finished on that day upon which Nasir Ahmad fired four shots which hit on right side of waist of Shahid. The injured succumbed to his injuries at the spot.
The motive alleged was that Nasir Ahmad used to take intoxicants while sitting in front of the house of complainant for which Shahid Nawaz had forbidden him and a quarrel ensued. In that quarrel, Shah Nawaz had given fist blows but later on the matter was patched up. Due to the said grudge, Nasir with the help of Muhammad Yousaf had committed the murder of Shahid Nawaz.
Investigation of the case was taken over by Muhammad Ismail Bhatti, S.-I. (P.W.11). He, after registration of the formal F.I.R.. Proceeded to the place of occurrence, inspected the post, prepared the injury statement Exh.P.G. Inquest report Exh.P.H., prepared rough site-plan Exh.P.J. And the blood-stained earth was taken into possession vide memo. Exh.P.B. Both the accused were arrested on 24-4-1995. Nasir accused while in custody led to the recovery of pistol P.4 which was taken into possession vide memo. Exh.P.C. After completion of the investigation, both the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.K., report of the Serologist Exh.P.L., report of the Forensic Science Laboratory Exh.P.M. 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 and produced two Police Constables as D.Ws. 1 and 2. However, after conclusion of the trial, Muhammad Yousaf was acquitted while Nisar Ahmad was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that both the eye-witnesses are real brothers of the deceased inter se they have made dishonest improvements while making statements before the trial Court in order to make in line the eye-witness account with medical evidence; no independent person has been cited or produced by the prosecution; in fact the complainant party is drug paddlers; they had enmity with many persons and this fact has been admitted by the complainant; there is clear conflict between ocular account and the medical evidence; motive has been disbelieved by the trial Court; the complainant has admitted in cross---examination that he was not present at the time of altercation which took place between appellant and the deceased and that quarrel became the cause of motive; in the absence of recovery of empty, mere recovery of fire-arm on the pointation of the appellant does not advance the case of prosecution any further and that the prosecution has miserably failed to prove its case against the appellant and he is entitled to clean acquittal.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the occurrence having taken place in front of house of the eye-witnesses, they were natural witnesses; the eye-witness account is truthful one; if the prosecution had any intention to falsely implicate the appellant and his acquitted co-- accused namely Muhammad Yousaf, in view of the number of injuries on the person of the deceased, fire-arms injuries could have been attributed to Muhammad Yousaf, acquitted accused; the F.I.R. Was recorded in the Police Station; the complainant party cannot be blamed for defective investigation and in this regard reliance has been placed upon 2002 SCM R 1578; the time, date and place of occurrence having been admitted, there was no need of any independent corroboration; motive is always in the mind of accused; it is a case of single accused and there is no question of substitution and in nutshell the prosecution has been successful in proving its case against the appellant. Both the learned counsel support the judgment of the trial Court.
8. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. Hussain Nawaz, complainant is real brother of the deceased Shahid Nawaz.
The complainant after the occurrence lodged the F.I.R. At 6-30 p.m. At Police Station which was read over and explained to him and he signed- the same in token of its correctness. Thereafter the Investigating Officer, P.W.11 went to the spot and prepared the inquest report. We have gone through the inquest report. The number of the F.I.R. Is not mentioned in the brief facts of the said inquest report. This shows that the F.I.R was, registered after due deliberation and consultation. Had the F.I.R. Been registered prior to preparation of the inquest report, the number of the F. I. R. Must have been given in the said report.
According to F.I.R., the first shot fired by the appellant hit on the front chest of the deceased towards left side while the second shot hit on his eyebrow. As far as first shot is concerned, that is an exit wound. The second shot is an injury with blunt weapon, so the ocular account is fully contradicted by medical evidence furnished by Dr. Mukhtar Ahmad P.W.4 who conducted post- mortem examination on the dead body of the deceased on 21-4-1995 at 9-30 a.m. It was further alleged by the complainant in the F.I.R. That after receiving two shots, as stated above, the deceased fell down on the ground and while the mouth of the deceased was towards the ground, Nasir, appellant fired four shots which hit on his waist. At this stage, injuries sustained by the deceased may advantageously be reproduced:-- "(1)An abrasion 7 x 2-1/2 c.m. Obliquely on left temporal region of face from left angle of left eyebrow to the left cheek upper part.
(2)An abrasion 3 x 2-1/2 c.m. Obliquely on lateral aspect of top of left shoulder.
(3)A fire-arm lacerated wound 1 x 1 c.m x chest cavity deep with slight blackening around inverted margins on right side back of chest in middle 10 c.m. Lateral from midline.
(4)A fire-arm lacerated wound 1-1/2 x 1-1/2 c.m. Chest cavity deep with slight blackening around and inverted margins on right side back of chest, 2 c.m. Below from the injury No.3.
(5)Fire-arm lacerated wounds 7 in number each one about 1 /2 x 1 /2 to 1 x 1/4 c.m. Epidermis to skin deep (Blackish burnt spots) in an area 16 x 6 c.m. On back of right side of chest around the injury Nos.3 and 4.
(6)A fire-arm lacerated wound 1 x 1 c.m. x chest cavity deep averted margins on front and lateral side of chest in middle 3 c.m. Above and medial from left nipple.
(7)An abrasion 2-1/2 x 1/2 c.m. Transverse on back of right wrist --joint."
A perusal of the above injuries shows that injuries 1, 2 and 7 were with blunt weapon while injuries 3, 4, 5 and 6 were with fire-- arms. Amongst them, injuries 3, 4 and 5 are entry wounds while injury No.6 is exit wound. Although according to F.I.R., six shots were fired at the deceased which hit on different parts of his body but according to the post-mortem report, there were 3 entry wounds with fire-arm, one exit and three with blunt weapons. Had the witnesses been at the spot, they must not have committed such mistakes. The complainant was duly confronted with his statement Exh.P.E. He admitted in cross-examination that after post-mortem report, he did not make any supplementary statement or tried to give any other statement to the Investigating Officer to correct himself. He also stated that four empties had fallen on the ground and those were collected by Muhammad Yousaf, co-accused (since acquitted) but this fact was not mentioned in the F.I.R.
The complainant also admitted that he did not bring the fact to the notice of the Investigating Officer that the empties have been collected by Muhammad Yousaf, accused (since acquitted). It was admitted by the complainant that what he had personally observed at the spot, he dictated the same to the Investigating Officer. He also admitted that the deceased was involved in 14/15 cases of narcotics and also under the Arms Ordinance starting from 1980. He further admitted that the deceased of this case was earlier convicted in a murder case but was acquitted by this Court.
The complainant further admitted that his family had enmity with different persons due to politics and also with the Police. As to motive, the complainant admitted that he was not the eye--witness of the said occurrence which became the cause of motive in this case. Both the eye--witnesses are real brothers inter se. No independent witness has been produced by the prosecution. In fact there is no independent corroboration to the tainted testimony of the eye-witnesses. On the one hand, the complainant stated before the trial Court that besides him and his brother Imran Khalid no other person was present at the spot while according to Imran P.W.10/15 persons were present at the spot and they made statements before the Investigating Officer regarding the occurrence but none was cited or produced by the prosecution. It has come on record that the deceased family was a drug paddler.
No crime empty was taken into possession from the spot so the mere report of the Fire-Arms Expert that the weapon recovered on the pointation of the appellant was in working condition does not advance the case of prosecution any further. The lead bullet taken out from the dead body of the deceased was never sent to the Fire-Arms Expert for comparison with the weapon recovered on the pointation of the appellant.
Had the occurrence as alleged by the prosecution taken place in broad daylight and had the witnesses been present at the spot, they must have stated the correct seat of injuries.
The motive has been disbelieved by the trial Court and for the reasons given, we also disbelieve the same and endorse the finding of the trial Court. Merely because of the fact that there was no background of previous enmity between the parties, conviction on a capital charge can neither be awarded or maintained if the charge is otherwise not proved beyond any shadow of doubt.
The motive having been disbelieved, there being clear conflict between ocular account and the medical evidence, no empty recovered from the spot and even the lead bullet taken out from the dead body of the deceased having not been sent to the office of the Fire-Arms Expert for comparison with the weapon recovered on the pointation of the appellant, the admission of the complainant/eye-witness that deceased was a drug paddler and was having enmity with different people and also with the Police, we are of the considered view that the prosecution has not been able to prove its case against the appellant rather there are dents and dents in the story set up by the prosecution. So while extending the benefit of dents/doubts, we accept the appeal filed by the appellant and acquit him of the charge. The conviction and sentence recorded against the appellant by the trial Court is set aside. He is in jail and shall be released forthwith, if not required to be detained in any other case. The death sentence of Nasir Ahmad, appellant is Not confirmed and Murder Reference is replied in the Negative.
Criminal Revision No.482 of 1998 filed by the complainant is dismissed.