JUDGMENT
??????????? AALIA NEELUM, J.---(1) Mian Khan son of Muhammad Sharif (since dead), (2) Ajmal Mushtaq son of Muhammad Mushtaq, (3) Babar Mushtaq son of Muhammad Mushtaq, all Gujjar by caste and resident of Nindowal, Tehsil Kharian, District Gujrat as well as (4) Fakhar son of Muhammad Zafar, Caste Gujjar, resident of Ghaghay, Tehsil and District, Gujrat, the appellants along with their co-accused persons namely Muhammad Riaz (since proclaimed offender), Aftab (since proclaimed offender), Zafar Mehdi (since proclaimed offender), Muhammad Mushtaq (since dead), Muhammad Tariq (since proclaimed offender) and Khan Muhammad (since murdered) were involved in a private complaint dated 19.05.2010, registered under Sections 302, 324, 440, 109, 148, 149, P.P.C., at Police Station, Saddar Lalamusa, District Gujrat as well as in State case FIR No.31-2010 dated 16.02.2010, offence under Sections 302, 324, 427, 109, 148, 149, P.P.C., registered at Police Station, Saddar Lalamusa, District Gujrat and were tried by the learned Additional Sessions Judge, Kharian. The learned trial court seized with the matter in terms of judgment dated 06.09.2012 convicted the appellants under Section 302(b), P.P.C., read with Section 149, P.P.C., and sentenced to Imprisonment for life each with the direction to pay compensation amounting to Rs.50,000/-each to the legal heirs of the deceased and in case of default thereof, each of the appellant would further undergo six months simple imprisonment. The appellants were also convicted under Section 324, P.P.C., read with Section 149, P.P.C., and sentenced to Imprisonment for seven years R.I. each with the direction to pay fine of Rs.30,000/-each and in default thereof, each of the appellant would further undergo simple imprisonment of three months. The appellant were further convicted under Section 148, P.P.C., and sentenced to three years R.I. each. The appellants were also convicted under Section 337-F(i), P.P.C., read with Section 149, P.P.C., and each of them was sentenced to undergo six months R.I. on three counts with the direction to pay Rs.20,000/-each as Daman to the each injured. The appellants were further convicted under Section 440, P.P.C., read with Section 149, P.P.C., and each of them was sentenced to undergo two years R.I. with the direction to pay fine of Rs.5000/-each and in case of default thereof, each of them would suffer simple imprisonment of one month. All the sentences shall run concurrently. The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellants.
2.???????? Being aggrieved by the judgment of the learned trial court, the appellants, Mian Khan, Ajmal Mushtaq, Babar Mushtaq and Fakhar have assailed their conviction and sentence by way of filing instant Criminal Appeal No.1405 of 2012 whereas the complainant-Mudassar Iqbal being dis-satisfied with the judgment dated 06.09.2012, preferred a Criminal Revision No.1038 of 2012 for enhancement of sentence of the appellants. As all the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.
3.???????? The prosecution story as contained in the private complaint (Ex.PG) filed by Mudassar Iqbal (PW-4)-the complainant is that on 16.02.2010 at about 3:00 p.m., the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad the injured (PW-6), Tariq Mehmood the injured (PW-5) while riding on two motorcycles were going towards their village after attending court proceedings from Kharian and when the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad-the injured (PW-6), Tariq Mehmood-the injured (PW-5) reached near the Dera of Khalid Porr then all of a sudden, the accused-Muhammad Riaz armed with Kalashanikov, the accused-Mian Khan (since dead) armed with a rifle .222-bore, the accused-Mushtaq Ahmad armed with Kalashanikov, the accused-Aftab Riaz armed with Kalashnikov, the accused-Zafar Mehdi armed with a rifle .222-bore, the accused-Ajmal Mushtaq armed with a rifle .222-bore, the accused-Babar Mushtaq armed with a rifle .222-bore and the accused-Fakhar armed with Kalashanikov were already sitting on the right side of the road, who with their common intention, started indiscriminate firing upon the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad-the injured (PW-6), Tariq Mehmood-the injured (PW-5) and a result whereof, the complainant (PW-4) received fire shots on the right side of the abdomen, the deceased, Muhammad Bashir received fire shots on right calf and left knee whereas Nazir Ahmad-the injured (PW-6) received fire arm injuries on right knee and chin while Tariq Mehmood-the injured(PW-5) received injuries on right elbow, right buttock and right leg, upon which, the complainant (PW-4) along with Muhammad Bashir (since dead), Nazir Ahmad-injured (PW-6), Tariq Mehmood-injured (PW-5) fell down whereas the deceased-Muhammad Bashir succumbed to the injuries and the motorcycles of the complainant party were seriously damaged. On hearing the report of firing, Ghulam Farid (PW-7) and Adalat Khan also attracted at the place of occurrence whereas all the accused persons while making firing fled away towards the eastern side. The motive behind the occurrence was that one year prior to the occurrence, the accused-Khan Muhammad (since murdered) had made a murderous assault on the complainant and as a result whereof, the accused-Khan Muhammad (since murdered) was detained in lock-up and the alleged occurrence took place as the complainant refused to effect compromise with them. In addition to the above said accused persons, the accused-Muhammad Tariq was also equipped with a rifle .222-bore and made indiscriminate firing upon the complainant party.
4.???????? On receipt of information, Khalid Hussain, S.I. (CW-6) along with Ibrar Hussain 2387/C, Ali Hassan 3498/C, Farooq Ahmad 2674/C, Kamran Khan 2770/C (CW-3), Mumtaz Ahmad 2957/C, Usman Ghani 2623/C reached at the spot where the complainant-Mudassar Iqbal (PW-4) got recorded his (PW-4) statement, which was reduced into writing (Ex.PF) by Khalid Hussain, S.I. (CW-6) and the complainant (PW-4) signed the same as a token of its correctness. Thereafter, Khalid Hussain, S.I. (CW-6) sent the complaint (Ex.PF) to the police station through Farooq Ahmad 2674/C for registration of formal FIR.
5.???????? Earlier on the statement of the complainant (PW-4), the FIR, was chalked out by Muhammad Iqbal, A.S.I., and thereafter investigation was entrusted to Khalid Hussain, S.I. (CW-6), who prepared injury statement of the injured-complainant (PW-4) (Ex.PB/2), injury statement of Nazir Ahmad (Ex.PA/2) as well as injury statement of Tariq Mehmood and deputed Ibrar Hussain 2387/C to get medically examined the injured-prosecution witnesses from Rural Health Centre Hospital, Lalamusa. Thereafter, the Investigating Officer (CW-6) inspected the dead body of the deceased, Muhammad Bashir and prepared injury statement (Ex.CW-6/A), inquest report (Ex.CW-6/B), drafted an application (Ex.CW-6/C) for postmortem examination of the deceased, Muhammad Bashir and deputed Mumtaz Hussain 2957/C and Usman Ghani 2623/C to escort the dead body of the deceased, Muhammad Bashir to the mortuary of Tehsil Headquarter Hospital, Kharian. Thereafter, the Investigating Officer (CW-6) secured bloodstained earth from the place of murder of Muhammad Bashir (since dead) vide recovery memo. (Ex.PH) and also secured bloodstained earth from the place of injury of the injured-Mudassar Iqbal and Nazir Ahmad through recovery memo. (Ex.PJ). The Investigating Officer (CW-6) collected 27 crime empties of Kalashnikov, 15 crime empties of .222 bore, one magazine and took the same into possession vide recovery memo. (Ex.PK) and also took into possession a motorcycle Honda-125 black colour as well as motorcycle Yamaha red colour vide recovery memo. (Ex.PL). Thereafter, the Investigating Officer (CW-6) prepared rough site plan of the place of occurrence (Ex.CW-6/D) and recorded the statements of prosecution witnesses under Section 161 of Cr.P.C. Thereafter, the Investigating Officer (CW-6) recorded the supplementary statement of the complainant (PW-4), who nominated the accused-Khan Muhammad (since murdered). The Investigating Officer (CW-6) moved applications (Ex.CW-6/E and Ex.CW-6/F) before the Medical Officer for recording the statements of injured-prosecution witnesses i.e. Nazir Ahmad (PW-6) and Tariq Mehmood (PW-5). Thereafter, Mumtaz Ahmad 2857/C produced last worn clothes of the deceased i.e. Tehband (P-1), Kurta (P-2) and Vest (P-3) before the Investigating Officer (PW-4), who took the same into possession vide recovery memo. (Ex.PD). On 18.02.2010, Akhtar Naqash, Draftsman on the direction of the Investigating Officer (CW-6) and on the pointing of prosecution witnesses visited the place of occurrence and prepared scaled site plan (Ex.CW-6/G) and produced the same before the Investigating Officer (CW-6) on 19.02.2010. On 18.03.2010, the Investigating Officer (CW-6) arrested the accused-Mian Khan (since dead), Mushtaq Ahmad, Ajmal Mushtaq and Babar Mushtaq. Therafter, investigation was entrusted to Altaf Hussain, S.I. (CW-7), who arrested the accused-Fakhar Iqbal. During interrogation, the accused-Fakhar Iqbal got recovered a kalashnikov (P-4) which was taken into possession by the Investigating Officer (CW-6) vide recovery memo. (Ex.CW-4/A) and prepared rough site plan of place of recovery (Ex.CW-7/A). After investigation, Altaf Hussain, S.I. (CW-7) found all the accused persons innocent except the accused-Fakhar Iqbal and prepared challan while placing the name of the accused-Fakhar Iqbal in column No.III and sent the same to the court of competent jurisdiction through the concerned Station House Officer, whereupon the complainant (PW-4) being dissatisfied with the investigation, filed a private complaint (Ex.PG) against all the accused persons including Muhammad Tariq (since proclaimed offender) and Khan Muhammad (since murdered) during pendency of the State case before the learned Judicial/Illaqa Magistrate Section 30, Kharian. The learned Illaqa Magistrate Section 30, Kharian sent the same to the worthy Sessions Judge, Gujrat for its entrustment to the court of competent jurisdiction. The learned trial court after hearing preliminary arguments, summoned all the accused persons to face the trial. On 19.10.2011, the learned Additional Sessions Judge, Kharian formally charge sheeted the appellants along with others to which they pleaded not guilty and claimed trial.
6.???????? The prosecution in order to substantiate its case produced as many as seven (07) prosecution witnesses during the course of State case whereas remaining witnesses mentioned in the calendar of witnesses were examined as CW-1 to CW-7 during trial in private complaint. Ocular account in this case consists of the statements of Mudassar Iqbal (PW-4), Tariq Mehmood (PW-5), Nazir Ahmad (PW-6) and Ghulam Farid (PW-7).
7.???????? Dr. Naeem Akhter appeared as PW-1 and deposed that on 16.02.2010, he (PW-1) medically examined the body of the injured-Nazir Ahmad and found the following injuries on his person:-
??????????? Injuries.
1.???????? Fire arm inlet wound ? x ? cm x DNP outer side of right knee joint.
2.???????? Fire arm exit wound 1.5 x 1 cm x DNP on medial side of right knee with swellon area X-ray knee joint was advised.
3.???????? Fire arm wound 4.5 x 2.5 cm exposing underneath muscles and bone, bleeding profusely on centre of chin mendible. X-ray mendible advised.
4.???????? Lacerated wound 2.5 x 1.5 cm tissue deep on right side of tempore prietal region of skull. X-ray skull advised (AP and Lat).
After conducting the medical examination, the doctor rendered the following opinion:--
??????????? Opinion.
"Patient wounds bleeding profusely and going to shock, corresponding holes were present in the clothes. After first aid management, he was referred to ABS hospital, Gujrat. All injuries were kept under observation till expert opinion Surgeon ABS Hospital Gujrat. Injuries Nos.1, 2 and 3 by fire arm weapon and injury No.4 was caused by blunt weapon. Probable duration of injuries within half an hour. Ex.PA is correct carbon copy of MLR and Ex.PA/1 is diagram of injuries."
On the same day, Dr. Naeem Akhter (PW-1) medically examined the body of the injured-Mudassar Iqbal and found the following injuries on his person:--
??????????? Injuries.
1.???????? There was firearm inlet wound 1/2 x 1/2 cm x DNP, on right side of abdomen.
2.???????? Firearm exit wound 1 x 1 cm on left side of abdomen. X-ray abdomen was advised.
3.???????? Firearm inlet wound 3 x 1 cm x DNP on right side of hip joint. X-ray hip joint was advised.
4.???????? Firearm exit wound 2 x 2.5 cm x DNP on anterior lateral side of left thigh in its lower half.
5.???????? Firearm inlet wound 1 x 1/2 cm into DNP on anterior medial side of left thigh in its lower half.
6.???????? Firearm wound 9 x 2.5 cm x DNP on posterior medial side of left thigh in its proximal part. Bleeding profusely. X-ray left thigh was advised.
7.???????? Firearm inlet wound 1 x 1/2 cm x DNP on anterior medial side of upper one third of left thigh.
8.???????? Firearm exit wound 2 x 2.5 cm on anterior lateral side of left thigh in upper 1/3 rd.
9.???????? Firearm inlet wound 1 x 1/2 cm x DNP on posterior side of upper half of left thigh corresponding holes were present on the clothes and clothes were bloodstained as well.
After conducting the medical examination, the doctor rendered the following opinion:-
??????????? Opinion.
"Patient was bleeding profusely. His condition was deteriorating and after first aid management, he was immediately referred to A.B.S Hospital, Gujrat for further management and consultation. All injuries were kept under observation till expert Surgeon opinion. All injuries were caused by firearm weapons. Probable duration of injuries were within about half an hour. There was no probability of fabrication. Ex.PB is correct carbon copy of MLR and Ex.PB/1 is sketch of injuries."
On the same day, Dr. Naeem Akhter (PW-1) medically examined the body of the injured-Tariq Mahmood and found following injuries on his person:--
??????????? Injuries.
1.???????? Firearm wound 6 x 3 cm x exposing underneath muscles and bones spicules, bleeding profusely on medial side of right elbow and lower 1/3rd of arm junction.
2.???????? Firearm inlet wound 1 x ? x DNP on anterior lateral side of upper part of abdomen.
3.???????? Firearm inlet wound 3 x 2 cm x DNP on outer side of right hip joint. Bleeding profusely.
4.???????? Firearm inlet wound 1.5 cm x 1 cm x DNP on lateral side of middle of right thigh. X-ray thigh (right) was advised.
5.???????? Firearm inlet wound 1.5 x 1 cm x DNP on lateral side of lower 1/3rd of right thigh.
6.???????? Firearm exit wound 7 x 3.5 cm x anterior medial side of right thigh lower 1/3rd. Clinically there was fracture underneath in this area and bleeding profusely.
After conducting the medical examination, the doctor rendered the following opinion:--
??????????? Opinion.
Patient's condition was deteriorating and after his first aid management, he was referred to A.B.S Hospital, Gujrat for further consultation and management. All the injuries were kept under observation. Probable duration of injuries was half an hour. There was no possibility of fabrication and injuries were caused by the firearm weapons. Ex.PC is correct carbon copy of MLR and Ex.PC/1 is sketch of injuries.
Muhammad Hanif, Dispenser Tehsil Headquarter Hospital, Kharian appeared as PW-3, who deposed that Dr. Zia-ul-Haq conducted postmortem examination of the dead body of the deceased-Bashir Ahmad but Dr. Zia-ul-Haq has proceeded to abroad and he (Muhammad Hanif, Dispensor) appeared as secondary evidence being well conversant with the handwriting of Dr. Zia-ul-Haq. Muhammad Hanif, Dispensor (PW-3) produced original register pertaining to postmortem report bearing No.31/10 of the deceased-Bashir Ahmad and also identified postmortem report (Ex.PE) and diagram of injuries (Ex.PE/1).
8.???????? On 13.08.2012, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PM), report of Serologist (Ex.PN) as well as report of Forensic Science Laboratory (Ex.PP).
9.???????? After closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C, wherein they opted not to appear as their own witnesses in terms of Section 340(2), Cr.P.C. in disproof of allegations leveled against them in the prosecution evidence and also refused to produce evidence in their defence. While replying to the question that why this case is against them and why PWs deposed against them, the appellants-Mian Khan, Ajmal Mushtaq and Babar Mushtaq made following depositions:--
"The complainant party was already hostile toward us due to the criminal case registered against my co-accused Khan Muhammad (since dead) as mentioned in the motive part of this case. In fact in year 1983 Niaz Ali a co-villager was murdered by Bashir Ahmad deceased, Ghulam Fareed PW and others and the heirs of said Niaz Ali have arranged this occurrence through some hired assassins. And as the actual accused were un-known to the complainant as well as eye witnesses, therefore, while availing the opportunity they had falsely implicated them and their co-accused while making us scape goat. All the PWs are related inter se therefore, they have deposed against them and their co-accused."
While replying to the particular question, Fakhar-appellant made following deposition:--
"I am innocent in this case. As a matter of fact one Niaz Ali was murdered by the complainant party and to take the revenge of the above stated murdered the legal heirs of said Niaz Ali deceased had committed the murder of the deceased of this case and committed the occurrence through some hired assassins and I was implicated in this case as scape goat. Motive is not attributed to me; even no previous criminal litigation is pending between me and the complainant party; I am resident of a different village Ghaga, Tehsil and District Gujrat. I am innocent and have been falsely implicated in this case due to ill will on the part of complainant party of this case. All the PWs are inter-se related and due to their inter-se relationship they have falsely deposed against me."
10.?????? Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellants, resulting into their conviction in the afore-stated terms.
11.?????? I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
12.?????? The entire prosecution case against the appellants-Ajmal Mushtaq, Baber Mushtaq, Mian Khan and Fakhar rests on the oral evidence of injured prosecution witnesses, Mudassar Iqbal (PW-4)-the complainant, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6), whereas Ghulam Farid (PW-7) and Adalat Khan (given up PW) claimed to be eye-witnesses of the incident. As per prosecution case, the incident had taken place at 3.00 p.m. on 16-02-2010 near the "Dera of Khalid Pour" in the area of village Nindowal, situated within the jurisdiction of Police Station Sadar, District Lalamusa which is at a distance of 4 miles only from the place of occurrence and it is connected by metalled road, where the deceased-Bashir Ahmad succumbed to the fire arm injuries at the spot whereas, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6) had also received serious injuries in the said incident. The complainant-Mudassar Iqbal (PW-4) deposed during examination-in-chief that, "Police reached at the place of occurrence and I got recorded my statement Ex.PF which was read over to me and I signed it in token of its correctness. Afterwards we were shifted to RHC, Lalamusa for medical treatment. From there we were referred to DHQ Hospital, Gujrat and Tariq PW was onward referred to Meo Hospital, Lahore." Khalid Hussain, S.I (CW-6)-the Investigating Officer, deposed during examination-in-chief that, "On 16.02.2010 I was posted in P.S Sadar Lalamusa. On the same day after receipt of information of the occurrence I along with other police officials reached at the place of occurrence i.e. matlled road leading toward Nindowal near the Dera of Khalid Pour. Mudassar Iqbal complainant appeared before me in injured condition and got recorded his statement under section 154, Cr.P.C. which was reduced into writing and read over to him, who signed Ex.PF in token of its correctness. After endorsing my proceedings on Ex.PF I dispatched the same to P.S. for formal registration of FIR through Farooq Ahmad 2674/C. Afterward I prepared injury statement of Mudassar Iqbal, Ex.PB/2, injury statement of Nazir Ahmad Ex.PA/2 and of Tariq Mehmood and deputed Ibrar Hussain 2387/C to get medically examined the said PWs from RHC Hospital Lalamusa." (underlined for emphasis). According to the prosecution, the incident took place at 3:00 p.m. on 16.02.2010 and the injured namely Mudassar Iqbal (PW-4)-the complainant, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6) were shifted to the hospital by the police after recording statements of Mudassar Iqbal (PW-4)-the complainant and other injured (PW-5 and PW-6) at the spot. Whereas, Dr. Naeem Akhter (PW-1), who conducted medical examination of the injured i.e. Mudassar Iqbal (PW-4)-the complainant, Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6) deposed that on 16-02-2010 he (PW-1) conducted medical examination of Nazir Ahmad (PW-6), Mudassar Iqbal (PW-4) and Tariq Mehmood (PW-5), who were brought to the hospital by police for medical treatment. Dr. Naeem Akhter (PW-1) deposed during cross-examination that, "All the three injured were produced before me at 3:30 p.m.---The injury statements of all the three injured were produced before me at the time of their M.L examination." (underlined for emphasis). Fact, however, remains that the injured prosecution witnesses were medically examined by Dr. Naeem Akhter (PW-1) between 3:35 p.m. to 4:00 p.m. On perusal of Medico Legal Certificate (Ex.PB) of the complainant, Mudassar Iqbal (PW-4), it reveals that he (PW-4) was medically examined at 4:00 p.m. Likewise Tariq Mehmood (PW-5) deposed during cross-examination that, "I remained in senses after receipt of fire arm injuries. I cannot tell that after how much time of the occurrence police arrived there. After arrival of police were dispatched to hospital. My statement was recorded by the I.O after about 8 days of the occurrence but I cannot tell the exact date. I only know that police after arrival send us to hospital and I do not know the other proceedings conducted by the police at the spot." As per Medico Legal Certificate (Ex.PC), it reveals that he (PW-5) was medically examined at 3:55 p.m., whereas Nazir Ahmad (PW-6) deposed during cross-examination that, "After the occurrence we were shifted to RHC, Lalamusa from there we were referred to DHQ Hospital, Gujrat and Tariq was further referred to Meo Hospital, Lahore." On perusal of Medico Legal Certificate (Ex.PA), it reveals that Nazir Ahmad (PW-6) was medically examined at 3:35 p.m. All the injured were brought to the hospital for medical treatment by police. It was specifically mentioned in the Medico Legal Certificates (Ex.PA, Ex.PB and Ex.PC) that "patient is not fit for statement." Dr. Naeem Akhter (PW-1) also deposed regarding health condition of all the injured, who were medically examined by him (PW-1), about complainant-Mudassar Iqbal (PW-4) he (PW-1) deposed during examination-in-chief that, "He was not able or fit for statement, so statement of brief history was not recorded." He (PW-1) further deposed regarding the complainant-Mudassar Iqbal (PW-4) during examination-in-chief that, "His condition was deteriorating and after first aid management, he was immediately referred to A.B.S. Hospital, Gujrat for further management and consultation." (underlined for emphasis). Whereas contrary to the deposition of the injured prosecution witnesses, (PW-4, PW-5 and PW-6), on perusal of "Fard Bayyan Ex.PF" it reveals that Khalid Hussain, S.I. (CW-6)-the Investigating Officer after police karwai written at the bottom of the verbal statement of the complainant-Mudassar Iqbal (PW-4) specifically mentioned at 4:00 p.m. The police karwai reads as under:--
The fact remains that neither the complainant-Mudassar Iqbal (PW-4) along with other injured prosecution witnesses were present at the place of occurrence at 04:00 p.m., nor they were referred by Khalid Mehmood, S.I. (CW-6) for medical treatment as well as injury statements were prepared at the time of recording of Fard Bayyan. The testimony of Dr. Naeem Akhter (PW-1) suggests that the complainant-Mudassar Iqbal (PW-4) was not in position to make statement and due to his (PW-4) deteriorating condition he (PW-4) was referred to A.B.S. Hospital, Gujrat. So, keeping in view medical evidence and testimony of Dr. Naeem Akhter (PW-1), it was not possible for Mudassar Iqbal (PW-4) the complainant to get recorded "Fard Bayyan" (Ex.PF) to the police.
13. There is another very important circumstance which goes to prove that the time of occurrence remains unproved. The complainant-Mudassar Iqbal (PW-4) deposed during cross-examination that, "I was present at the place of occurrence when police arrived there after about half hour of the occurrence.----At the spot my statement was recorded by the police officer and I do not know if he had recorded statement of any other PW or not.----I cannot tell what proceedings I.O. had conducted at the place of occurrence and I only know that my statement was recorded by him when I was lying in injured condition." This also creates doubt about the genuineness of the version given by the complainant (PW-4) and the injured prosecution witnesses (PW-5 and PW-6).
14.?????? Dr. Zia-ul-Haq conducted postmortem examination of the dead body of Bashir Ahmad-the deceased. The postmortem report was placed on the record as Exh.PE and Exh.PE/1. From the postmortem report (Exh.PE and Exh.PE/1) it reveals that time of death was 03:00 p.m. on 16-02-2010; the dead body was received in the dead house at 04:30 p.m.; complete police documents were received from police at 06:35 p.m. and autopsy was conducted at 7:00 p.m. on 16-02-2010. From the postmortem examination report (Exh.PE and Exh.PE/1), it reveals that complete police documents were received from police at 06:35 p.m. whereas the complainant-Mudassar Iqbal (PW-4) had made verbal statement-fard bayyan (Exh.PF) on 16-02-2010 at 4:00 p.m. and formal FIR was chalked out at 04:30 p.m. on the same day. Wherein, the complainant-Mudassar Iqbal (PW-4) was specific in his (PW-4) stance that Bashir Ahmad (the deceased) lost his life immediately at the spot. As per inquest report (Exh.PK) in column No.3 time and date of receiving information of death was mentioned on 16-02-2010 at 3:00 p.m. This threw cloud of doubt about the time when actually incident was reported to the police. Besides, it has been mentioned in the postmortem reports (Ex.PB and Ex.PB/1) that duration between injury and death is 2 hours whereas the complainant-Mudassar Iqbal (PW-4) deposed that the police reached at the place of occurrence after half hour and the complainant (PW-4) reported the incident to the police, which suggests that the police reached at the place of occurrence at 3:30 p.m. However, from the inquest report (Exh.CW6/B), it reveals that death took place at 3:00 p.m. and all prosecution witnesses also deposed in the similar line that the occurrence took place at 03:00 p.m. and Bashir Ahmad (the deceased) lost his life immediately and the same goes against postmortem report which created doubt regarding the time of the occurrence as well. Keeping in view all above said circumstances, there is serious flaw in the prosecution evidence, as no evidence or material has been produced by the prosecution to prove the time of occurrence and when the deceased took his last breath, so as to precisely fix the time when the occurrence took place. The testimony of the complainant-Mudassar Iqbal (PW-4), Tariq Mehmood (PW-5), Nazir Ahmad (PW-6), Ghulam Farid (PW-7) and Khalid Hussain, S.I (CW-6)-the Investigating Officer was belied by medical as well as documentary evidence. The duration given by the doctor between the injury and death was two (2) hours, whereas the eye-witnesses stated that Bashir Ahmad-the deceased succumbed at the spot which shows that occurrence had neither taken place at the time shown in the FIR nor in the manner set up by the prosecution. The duration given by the doctor between the injury and death suggests that the occurrence took place around 01:00 p.m. All above said facts create doubt about the time of death of the deceased-Bashir Ahmad and place where the complainant reported the incident to the police. Considering all these facts, this Court has no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the FIR was recorded at the time at which it was claimed to have been recorded. At this stage the point canvassed before this Court has narrowed down regarding presence of the accused-appellants at the place of occurrence and, therefore, elaborate discussion on the point relating to the death of Bashir Ahmad and its homicidal nature and injuries caused by fire arm on the persons of injured prosecution witnesses is not necessary. In fact, since other facts have receded into background, this Court can straight away proceed to consider the question and the only question involved in the present case; whether the accused/appellants can be held responsible for the death of Bashir Ahmad and injuries on the person of the prosecution witnesses. During cross-examination the complainant-Mudassar Iqbal (PW-4) deposed that, "We left the Court premises at about 1:15 p.m.--The place of occurrence was at a distance of about 22 km from the Courts at Kharian." Tariq Mehmood (PW-5) deposed during cross-examination that, "We reached at the place of occurrence at about 3:00 p.m. After getting free from the Court proceedings we went to Bazar, took tea and then proceeded toward our village." Nazir Ahmad deposed during cross-examination that, "We started our return to our village at about 1:30/2:00 p.m. The distance between Kharian Kutchehry and place of occurrence is about 11 miles. We were returning to our village straight from Kharian Kutchehry." If, this Court considers that the injured prosecution witnesses (PW-4, PW-5 and PW-6) left the court premises at 1:15 p.m., as deposed above by the complainant-Mudassar Iqbal (PW-4), then it was not possible for the deceased-Bashir Ahmad and injured prosecution witnesses to reach at the spot/place of occurrence at 1:00 p.m., as it is specific case of the prosecution that the occurrence took place at 3:00 p.m., on 16.02.2010, wherein the deceased-Bashir Ahmad succumbed to the injuries at the spot whereas the medical evidence suggests that the deceased remained alive for two hours. The opinion of doctor has great weight, provided it is supported by the material on which same was found. Looking to the injuries sustained by Bashir Ahmad-the deceased and the description of injuries given by the doctor in the postmortem examination reports (Ex.PB and Ex.PB/1) do not support the testimony of eye-witnesses. These symptoms do indicate that the duration between the injury and death could be two hours having regard to nature of injuries. These facts and circumstances unerringly not pointed to the presence of the accused-appellants at the crucial time at the place of occurrence.
15.?????? The next infirmity in the prosecution case is that the conduct of Ghulam Farid (PW-7) and Adalat Khan (given up PW) in not shifting injured to the hospital for medical treatment or in not trying to go to the Police Station for reporting the case, was not the natural conduct of an eye-witnesses of the occurrence. It is really surprising that having witnessed a ghastly occurrence both of them i.e. Ghulam Farid (PW-7) and Adalat Khan (given up PW) remained in waiting for police. Ghulam Farid (PW-7) deposed during examination-in-chief that, "After one hour of the occurrence police arrived at the spot and recorded the statement of Mudassar." There was also no evidence as to why the witness i.e. Ghulam Farid (PW-7) had not called police for reporting the incident or ambulance for shifting the injured to the hospital for medical treatment. Ghulam Farid (PW-7) admitted during cross-examination that, "It is correct that we all the private witnesses are relatives inter se." Ghulam Farid (PW-7) was not independent witness and the conduct of this witness i.e. Ghulam Farid (PW-7) is highly unnatural. Being relative of the deceased and injured he (PW-7) could have taken the injured to hospital for medical treatment soon after the incident and the life of Muhammad Bashir-the deceased could have been saved and that was not done by him (PW-7). Therefore, his conduct is highly unnatural and no reliance should be placed upon the evidence of Ghulam Farid (PW-7). It is difficult to believe that he (PW-7) witnessed the occurrence. According to PW-7, he (PW-7) along with Adalat-PW was present in their fields at about 2:45/3:00 p.m. when Tariq, Nazir PWs while riding on motorcycle and on the other motorcycle Mudasar Iqbal-PW along with Bashir deceased reached near the Dera of Khalid Pour and occurrence took place. Ghulam Farid (PW-7) admitted during cross-examination that, "It is correct that I did not possession any Dera or house near the place of occurrence. Near the place of occurrence toward its eastern side was the crop of my chacha and I was present there. My said Chacha namely Adalat has only one daughter. Adalat is alive. I along with Adalat left the village for the fields after about 2:30 p.m. The fields of Adalat Khan were at a distance of about 10 Acres from the place of occurrence.---After hearing reports of firing we attracted towards the place of occurrence. The injured fell down on the ground after receipt of injuries in our eye view as they were visible to us through the fields." It appears unnatural that the eye-witness who was chance witness and was present at a distance of 10 Acres could witness the occurrence. He (PW-7) did not inform to the villagers of the village, according to him (PW-7) the village was at a distance of about 1/3rd of mile from the place of occurrence. Normally, one would have expected them to shift the injured PWs to the hospital for medical treatment and also to go to the Police Station for reporting the incident to the police, and to render help if necessary, since the deceased and the injured were known to him (PW-7). In any event his (PW-7) natural conduct would have been to shift the injured PWs to the hospital for medical treatment or to go to the Police Station for reporting the incident to the police. If he (PW-7) really present there. It is in the evidence of Ghulam Farid (PW-7) that, "It is correct that in 1993 one Niaz Ali my co-villager was murdered and case was registered against me and Bashir deceased of this case." So, Ghulam Farid (PW-7) was aware about the steps to be followed after the incident. To say the least, his (PW-7) evidence does not inspire confidence. His (PW-7) conduct is highly unnatural. His (PW-7) version that he (PW-7) witnessed the occurrence from 10 Acres, is not believable. If he (PW-7) really witnessed the occurrence, he (PW-7) would not wait for police rather he (PW-7) would shift the injured PWs to the hospital to save their lives. The possibility, therefore, of having come to the place of occurrence much later, and having been created solely with a view to support the prosecution case, cannot be ruled out.
16.?????? However, there are material contradictions and discrepancies in the testimony of the aforesaid witnesses regarding inflicting injuries on the person of injured witnesses-Mudassar Iqbal (PW-4), Tariq Mehmood (PW-5) and Nazir Ahmad (PW-6). The statement under s161 of Cr.P.C of Tariq Mehmood (PW-5) deposed that his (PW-5) statement was recorded after eight days. He (PW-5) deposed that, "My statement was recorded by the I.O after about 8 days of the occurrence but I can not tell the exact date." The statement of the prosecution witness should be recorded as promptly as possible, without giving him any opportunity to improve upon and subtract from what he saw. Since the delay is likely to give an opportunity to a witness to concoct a different version. The delayed recording of the statement of the witness had proved fatal and sounded death knell for the prosecution case. Nazir Ahmad (PW-6) deposed during examination-in-chief that, "After coming out of the crop they all started indiscriminate firing upon us. Mudassar received fire shots on his abdomen and on both legs. Bashir deceased received injuries on his both legs, I received fire arm injuries on my chin and right knee. Tariq PW received fire arm injuries on his right arm, abdomen and leg." Likewise, Ghulam Farid (PW-7) deposed during his (PW-7) examination-in-chief. Whereas, Nazir Ahmad (PW-6) deposed during cross-examination that, "My statement was recorded by the I.O in hospital, on the same day. It is correct that I got recorded in my statement under section 161, Cr.P.C. that Aftab accused made a burst shot of his Kalashnikov at Mudassar and Bashir and fire shot made by Riaz had hit me and Tariq PW." Likewise, Ghulam Farid (PW-7) deposed during cross-examination that, "I got recorded my statement before the I.O. I got recorded in my statement under section 161, Cr.P.C. that burst shot of Aftab accused hit Bashir deceased and Mudassar PW, due to which they fell down on the ground and the fire shot made by Riaz accused had hit Tariq and Nazir due to which they also fell down on the ground." By giving collective role of indiscriminating firing to the accused persons towards injured witnesses and the deceased, creates doubts about the truthfulness of the prosecution witnesses. Thus the prosecution witnesses improved their version. In these circumstances, the appellants deserve benefit of doubt from the charges leveled against them. Khalid Hussain, S.I. (CW-6) the Investigating Officer, deposed during examination that, "During my investigation Mushtaq Ahmad accused was found present in Bukhari Mosque in village Nindowal at the time of occurrence, accused Ajmal Mushtaq was found present in Lalamusa City at the time of occurrence, accused Babar Mushtaq was found present at his cattle Dera in village Nindowal at the time of occurrence and presence of accused Mian Khan was also not established at the place of occurrence." Therefore, possibility of false implication of the appellants in the alleged crime cannot be ruled out and in my opinion, the prosecution has failed to bring home the charges framed against the appellants.
17.?????? It is by now well settled law that medical evidence can only indicates that the deceased had lost his life due to certain injuries but it does not lead to the culprits. Reliance is placed on the judgment of august Supreme Court of Pakistan in the case of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410); wherein it was held as under:--
"---Medical evidence had only indicated that the deceased had lost his life due to fire-arm injury, but it did not lead to the culprits---No crime-empties having been recovered from the spot, recovery of fire-arm from the accused was inconsequential---Accused were acquitted in these circumstances."
The report of Forensic Science Laboratory, Punjab, Lahore Exh.PP is only to the effect that the weapon allegedly recovered from the accused/appellant-Fakhar Iqbal was in working condition. So, the recovery of the weapon from the accused is of no consequence.
18.?????? In the present case, the only circumstances which at best could be said to have been proved by the prosecution as well as defence are that there was enmity between the parties on account of a criminal litigation. Both parties i.e. the complainant and accused were locked in criminal litigation. The appellants took plea that they were involved in the instant case due to previous enmity. Admission of criminal litigation by itself may not be a ground to hold the accused guilty. The appellants took plea that they were involved in the instant case due to previous enmity. Enmity, as is well-known, is a double edged weapon, which cuts both ways and in this context involvement of accused in the case due to previous hostility between the parties could not be ruled out. If on one hand, it provided a motive for the accused to commit the occurrence in question and on the other hand it equally provided an opportunity to the first informant to implicate his enemy. The accused on the basis of his motive to commit the crime can not by itself lead to a judgment of conviction.
19.?????? The prosecution witnesses were not only inimical towards accused persons but were also closely related to the deceased and for the above stated reasons the complainant had reasons to falsely implicate the appellants-accused and corroboration from independent source was required which was not forthcoming from any independent source as occurrence took place on the thoroughfare and no one from that locality joined the investigation, thus the prosecution had not been able to prove its case against the accused beyond any shadow of doubt as there were many dents in the prosecution story. Reliance has been placed on the case reported as Muhammad Akram v. The State (2009 SCMR 230) wherein the Hon'ble Supreme Court of Pakistan has held that even a single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.
20.?????? In view of what has been noticed and discussed above, Criminal Appeal No.1405 of 2012 is accepted. The conviction and sentence awarded by the learned Additional Sessions Judge, Kharian, vide judgment dated 06.09.2012 is set aside and the appellants, Mian Khan, Ajmal Mushtaq, Babar Mushtaq and Fakhar are acquitted of the charges in private complaint as well as in case FIR No.31 of 2010, dated 16.02.2010, offence under Sections 302, 324, 427, 109, 148, 149, P.P.C., registered at Police Station, Saddar Lalamusa, District Gujrat. The appellants-Babar Mushtaq, Ajmal Mushtaq are on bail, so their (the appellants-Babar Mushtaq and Ajmal Mushtaq) bail bonds stand discharged. As per report of Station House Officer, Police Station, Saddar Lalamusa, the appellant-Mian Khan (on bail) has been expired in the year 2014. So, to the extent of the appellant-Mian Khan, instant appeal stands abated and as a result whereof, bail bonds stand discharged. The appellant No.4, Fakhar is in jail. He (the appellant-Fakhar) is directed to be released forthwith, if not required in any other case.
21.?????? So far as Criminal Revision No. 1038 of 2012 seeking enhancement of sentence of respondents is concerned, for the above-stated reasons, the same has no weight, which is accordingly dismissed.
JK/M-90/L????????????????????????????????????????????????????????????????????????????????????????? ???? Order accordingly.
0 Comments