' This judgment will dispose of Criminal Appeal No.155 of 2002 filed by Abid Ali, appellant who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay Rs. One lac as compensation, in default six months' S.I. By learned Additional Sessions Judge, Lahore vide judgment dated 7-1-2002., ' Criminal Revision No.107 of 2002 filed by the complainant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 5-11-1999 at about 8-00 a.m., Muhammad Riaz (deceased) left his house by motorcycle for Suai Aasal and the complainant Atta Muhammad.Followed him on bicycle having milk with him. When the complainant reached near Ada Tangianwala of Pandokey village, he saw that his son Muhammad Riaz was standing on his motorcycle in front of a shop owned by Mushtaq Kinnhar. In the meanwhile, Abid Ali (appellant) while armed with .12 bore single barrel gun, crossed the complainant by tractor trolley and got down from the same after halting it. Abid Ali fired at Muhammad Riaz with his .12 bore gun and the injured fell down. While the injured was lying, appellant repeated three fires. The complainant raised alarm upon which Abid pointed his gun towards him. Out of fear, Atta Muhammad, complainant went to the Haveli of Muhammad Hassan. The accused left the spot after firing in the air. The occurrence was witnessed by Munawar Hussain and Shaukat Ali. - ' The motive alleged was that Muhammad Riaz was murdered on account of dispute of shops.
4. Investigation of the case was taken over by Mansab Dar, S.-I. (P.W.16). He after receipt of information, went to the place of occurrence, took into possession the dead body of Muhammad Riaz, prepared injury statement and also inquest report Exh.P.M. Thereafter, the Investigating Officer recorded statement of the complainant, from the spot, took into possession the blood-stained earth vide memo. Exh.P.E., four crime empties were also secured vide memo. Exh.P.J. The accused Abid Ali was arrested on 16-11-1999 and the accused while in custody led to the recovery of .12 bore gun P.1 which was taken into possession vide memo. Exh.P.A. After completion of the formal investigation, accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 16 witnesses in all. Then the learned D.D.A. Tendered in evidence Exh.P.L. Report of the Chemical Examiner, Exh.P.L.1, report of - the.
Serologist and Exh.P.M.; report of the Forensic Science Laboratory and closed the case of the prosecution. After that statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded false implication.
6. Syed Shakir All Rizvi learned counsel for the appellant submits that prosecution has failed to prove the motive set up in the F.I.R. Because to prove the same no Revenue Record was produced before the 1.0. Nor the 1.0. Collected the same and that the prosecution did not produce any witness to prove the quarrel which took place between appellant and the deceased prior to the occurrence. Elaborating his arguments, learned counsel submits that complainant has admitted before the trial Court that Haji Nazir Ahmad, maternal uncle of the appellant had got mutated the shops in his name 8/9 years ago but he did not take any legal action against that mutation.
' Learned counsel submits that complainant is father of the deceased while Shaukat All and Munawar Hussain P.Ws.9 and 10 are first cousin of the complainant. It is argued that Shaukat Ali, (P.W.9) in cross-examination has stated that on the day of occurrence he was on leave and in the same breath stated that on the day of occurrence, he had gone to the Adda for getting some vehicle to go to the office. Further submits that the occurrence had taken place in front of the tea stall of Mushtaq where there is also a Tonga stand. Neither the said Mushtaq nor any Tonga driver was interrogated by the Police or produced before the trial Court and similarly according to the statements of P.Ws.8 and 9, they were standing at the shop of Shahbaz but said Shahbaz was also not produced. Learned counsel argues that according to the complainant he had concealed himself in the Haveli of Hassan Muhammad but neither Hassan Muhammad nor anybody from that Haveli was produced. Learned counsel has referred to statement of complainant Atta Muhammad P.W.8 who stated during the cross-examination that accused fired the shots from a distance of 10/12 feet while according to Munawar Hussain P.W.10 shots were fired from a distance of 2/3 feet.
Further argues that P.W.8 Atta Muhammad had stated that there were 5/6 Tongas at the site while according to P.Ws.9 and 10 no Tonga was standing at the time of occurrence. Same is the position with regard to standing of wagon.
' It is next argued that report of the Fire-arms Expert is manufactured one because according to statement of the 1.0. P.W.16, he received the report of the Firearms Expert on 16-11-1999 and placed the same on file on 19-11-1999 but in fact what happened was that after arrest of the accused, shots were fired and crime empties were prepared and then the report was got manufactured.
Further argues that in the inquest report, there is no mention of crime empties lying at the place of occurrence. Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellant and the appellant is entitled to acquittal.
7. Learned counsel for the State assisted by learned counsel for the complainant submits that it is a case of promptly lodged F.I.R. And of a single accused, the names of the eye-witnesses are mentioned in the F.I.R., the parties are closely related to each other.
' Mr. Atir Mahmood, Advocate also appearing on behalf of appellant adopts the arguments advanced by Syed Shakir Ali Rizvi with further addition that the trial Court having disbelieved the motive, eyewitness account and recovery, there was no justification to record conviction against the appellant.
8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant who has also filed Cr. Revision 107 of 2002 for enhancement of sentence submits that it is a ease of promptly lodged F.I.R., the names of the eye-witnesses are mentioned in the F.I.R., the parties being closely related, there was no question of mistaken identity, it is a case of single accused, ocular account is fully corroborated by medical evidence and the matching of the crime empties with the gun recovered on the pointation of the appellant, the crime empties were shown in the site-plan Exh.P.A.1, mere relationship of the complainant with the deceased is no criteria to discard their testimony because the witnesses had no animus against the appellant, the appellant was found guilty during the course of investigation and that the prosecution has miserably failed to prove its case against the appellant.
9. I have heard. Learned counsel for the parties and have gone through the record with their able assistance. According to the complainant Atta Muhammad, he had dispute with one Haji Nazir who is uncle of appellant Abid Ali about some shops and that there was a quarrel on 4-11-1999 between Muhammad Riaz and deceased Abid Ali, appellant over those shops and the deceased had put locks on the shops. It was further alleged by the complainant that at night, the matter was patched up due to intervention of the respectables and relatives. Atta Muhammad, complainant has appeared as P.W.B. None from the respectables or relatives was produced either before the police or before the trial Court with regard to patching up the matter between the parties on the evening of 4-11-1999. During cross-examination, Atta Muhammad admitted that he brought no civil suit against said Haji Nazir regarding dispute of shops which are still in possession of Haji Nazir. P.W.8 further admitted that mutation was attested in favour of Bashir, Nazir and himself and later on Nazir Ahmad, got the mutation of those shops sanctioned in his favour. This witness further admitted that mutation which was sanctioned in the name of Haji Nazir took place 8 years prior to the occurrence and that he did not challenge the said mutation in favour of Haji Nazir. This itself proves that there was no dispute between Nazir Ahmad and Atta Muhammad. If Nazir Ahmad had got the mutation entered in his favour fraudulently, Atta Muhammad complainant P.W.8 had a right to move the Court or report to the police. No untoward incident took place for the last 8 years prior to the occurrence between Nazir Ahmad on the one side and Atta Muhammad on the other side. As far as appellant is concerned, he had no motive against the deceased Riaz. Both the P.Ws.8 and 9 who are first cousins of the complainant have admitted before the trial Court that they were not the witnesses of quarrel having taken place between the deceased and the appellant on 4-11-1999.
The Investigating Officer P.W.16 had also admitted that he had not inquired or investigated into the motive set up by the prosecution in the Taking into consideration the above facts and circumstances of the case, I am of the considered opinion that the prosecution has mi crably failed to prove the motive against the appellant.
10 . -Now, I would take up the eye-witness account having been furnished by Atta Muhammad, complainant (P.W.8), Shaukat Ali and Munawar Hussain, P.Ws.9 and 10 respectively. P.W.8 is father of the deceased while P.Ws.9 and 10 are first cousins of the deceased. They are all related to the deceased. The occurrence had taken place at a busy place. None from the of occurrence was cited or produced by the prosecution. It is important to note here that according to complaint Exh.P.C. The complainant did not mention the seat of injuries on the person of the deceased though he had stated that first shot was fired by the accused on the person of the deceased when he (deceased) was on motorcycle, the deceased fell down on the ground in that condition, the accused fired three more shots but while appearing before the trial Court as P.W.8 he mentioned the seat of injuries by stating that first shot hit on the back of the deceased while remaining 3 shots hit on his head, hand and arm. He has also changed his version during the cross-examination that he did not see the first fire hitting on the person of the deceased. In fact, he was conscious of the fact that he had not given the seat of injuries in the F.I.R. And in order to make his statement in line with the medical evidence, mentioned the seat of injuries on the person of the deceased.
According to the site-plan, distance between the deceased and the appellant was 2 feet but Atta Muhammad (P.W.8) in second paragraph of his cross-examination stated that distance between the deceased and the appellant was 10/12 feet. There is blackening and burning on the person of the deceased which also falsifies the version of the prosecution. Moreover, Dr. Muhammad Raza (P.W.12). Ile conducted post-mortem examination on the dead body of the deceased at 8-00 p.m.
On 5-11-1999 and during cross-examination stated that the distance between the deceased and the appellant at the time of D firing was less than 3 feet.
' The conduct of the eye-witnesses is also of great importance. According to the complainant P.W.8 the deceased left his house at 8-00 a.m. On motorcycle. His father the complainant followed him on a cycle. The motorcycle and cycle cannot compete in speed. Shaukat Ali I.W.9 who claims that his house is at a distance of about 20 yards from the house of the deceased, stated that the deceased had left the house in his presence and he (witness) in order to go to his office was in search of the vehicle. If this was the position, the witness could have taken lift from the deceased who was on a motorcycle. Both the P.Ws.8 and 9 did not mention the seat of injuries on the person of the deceased even before the trial Court.
' According to case of the prosecution, the occurrence had taken place at 8-00 a.m. And concluded within 2/3 minutes. All the eye-witnesses namely P.Ws.8. 9 and 10 who are closely related to the deceased, neither took the dead body of E the deceased to home, hospital or went to the police station to inform the police. They waited till arrival of the Investigating Officer at the spot.
In the complaint Exh.P.C. Which was recorded at 10-00 a.m. At the spot, no explanation for this delay and presence of the witnesses at the spot has been given. The complaint was lodged at 10-00 a.m.
According to Column No.3 of the inquest report Exh.P.J., the time of receipt of information to the police is 9-30 a.m. This time also does not reconcile with each other. The doctor who conducted post-mortem examination on the dead body of the deceased had mentioned the duration between the death and the post- mortem exactly as 10 hours and 35 minutes. The occurrence, according to the prosecution, having taken place at 8-00 or 8-15 a.m. On 5-11-1999, the duration should have been 12 hours. It can thus be safely held that occurrence had not taken place at 8-00 a.m., as suggested by the prosecution. In my considered opinion, the eye-witnesses were chance witnesses and their presence at the spot is doubtful.
' Four crime empties were recovered from the spot, it was the case of the prosecution. According to eye-witness account firstly one shot was fired and thereafter, three shots were fired. Four crime empties could not have been taken into possession by the I.O. Unless 5th shot was fired because after firing one shot from a single barrel gun, another cartridge has to be put in order to make a second fire. The story of the prosecution was that appellant came on a tractor but after his arrest, neither the tractor was recovered during the course of investigation nor the tractor has been shown in the site-plan prepared by the I.O. Or by the draftsman. Column No.23 of the inquest report is also blank. This column read as under:- {{URDU TEXT}} ' It has also come on record that the deceased had got two wives. The first marriage took place with blessing of the parents and other was without blessing of the family. Atta Muhammad father of the deceased had admitted that Riaz deceased was involved in criminal cases though he was contradicted by Shaukat P.W.
The reasoning given by the trial Court are contradictory. On the one hand, the trial Court has disbelieved the motive set up by the prosecution in the F.I.R., the recovery of crime empties and has also concluded the presence of the eye-witnesses at the place of occurrence to be doubtful as also held that medical evidence has created some doubts about the time of death of the deceased but on the other hand, convicted the appellant and sentenced him to undergo R.I. For 25 years.
As a result of the above discussion, I am fully satisfied in my mind that the prosecution has miserably failed to prove its case against the appellant rather there are doubts and doubts in the case of prosecution. By extending the benefit of doubt, I accept the appeal and set aside the conviction and sentence recorded by the trial Court against the appellant. The appellant is in jail.
He shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision No.107 of 2002 is dismissed.