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Criminal Appeal No. 714 of 1970, heard on 20th March, 1982.

‑‑‑S. 417‑‑Penal Code (XLV of 1860), S.302‑‑Appeal against acquittal‑ Patent defects existing in prosecution case‑‑Purpose of visit of complainant party at place of occurrence not mentioned in First Information Report‑‑Ocular evidence not tallying With medical evidence and testimony of eye‑witnesses inspiring no confidence‑‑Prosecution witnesses stating in their testimony that deceased was fired at a distance but medical evidence establishing a case of close‑range firing‑‑No explanation given by prosecution for so many empties found at spot‑‑Case against accused not proved beyond reasonable doubt‑‑None of principles governing case of appeals against acquittal applicable in case‑‑Order of acquittal in no way resulting in miscarriage of justice‑‑Order upheld in circumstances.‑‑[Appeal against acquittal].

Muhammad Sharif Uppal for Appellant.

M. B. Zaman and Najam‑uz‑Zaman for the Complainant.

Ch. Khadim Mohy‑ud‑Din for Respondents.

Dates of hearing: 16th and 20th March, 1982.

‑‑Aziz Khan, his brother Bashir Ahmad, Muhammad alias Mahanda, Ashraf and Muhammad sons of Suba were tried for murder of Nawab Khan by the Additional Sessions Judge, Lahore. The trial Court by judgment dated 2‑4‑1970 acquitted all the accused: The State felt aggrieved and filed appeal against acquittal in which notice was issued to the respondents.

2. Nawab Khan was shot dead on the morning of 3‑11‑1968 in the area of village Shamasabad. Baqir Khan his son lodged report Exh. P.A. at Police Station, Chunian. This was recorded by S.I. Muhammad Akram Khan.

3. Motive for the murder was that four years prior to the occurrence, Baqir got married to Sakina Bibi. The first child named Kausar died six months after birth. Then another baby girl was born. Her name was Sughran Bibi. Ahmad Din father‑in‑law of Baqir died 10/12 years before the occurrence. His widow Rajan Bibi got married to Bashir real uncle of Baqir. Ahmad Din left 40 acres of land behind. Mutation pertaining to that land was entered in the name of Mst. Rajan Bibi and Sakina Bibi. Budha son of Natha was not happy over the marriage of his daughter Mst. Rajan Bibi. He took into confidence Abdul Aziz and Bashir Ahmad sons of Karam. They abducted Mst. Sakina Bibi wife of Baqir. This happened 10/12 months prior to the occurrence. Even an attempt was made to get the mutation set aside. Sakina was pressurised to file a suit for dissolution of her marriage. This led to hard feelings between the parties. This was followed by proceedings under section 107/151, Cr.P.C.

Abdul Aziz and others, thereafter used to be absent from their village. It is alleged that an evening before the occurrence, Baqir, his father, Nawab, Sarwar and Qudratullah left for Mauza Hassan Khan. They had some business to do. They got late. They stayed there for the night. At about Fajar time four of them started for Shamasabad. The sun was about to rise. When they reached near the Dhari of Abdul. Aziz, then all of a sudden Abdul Aziz and Bashir Ahmad armed with .12 bore shotguns, Mahanda with rifle, Muhammad and Ashraf sons of Suba with carbines came out from the side of the Dhari. They shouted and started firing. Nawab was hit in the forehead. Baqir received an injury on the left shoulder. Sarwar his brother was hit in the left flank and right leg. The complainant party retreated. They ran for life. Assailants fired again. Nawab was hit. He dropped dead.

Qudratullah who was carrying licensed gun, though injured in his wrist, returned fire. It is alleged that as the accused side was firing indiscriminately, the complainant party ran away. Baqir then lodged the report.

S. I. Muhammad Akram Khan (P.W.7) came to the spot and arrested Aziz Khan and Bashir Ahmad respondents. He prepared the injury statement of Baqir and sent him to the hospital for medical examination. The Officer also prepared injury statement and inquest report of Nawab. Some articles of Nawab deceased like turban and leather bag were also taken into possession. The police officer took into possession 30 crime empties from the place of occurrence vide memo. P.H. Three empties of .303 were also recovered from the spot. They were made into a sealed parcel vide memo. PK. The officer took into possession 45 empties of .12 bore from inside the Kotha of Aziz vide memo. P.L. The 45 empties not despatched to the Forensic Science Laboratory. Aziz Khan and Bashir produced their licensed guns. These were taken into possession vide memo. P.H. and P.O., respectively. Mahanda respondent also produced rifle.

4. Ocular account was given by Baqir Khan, Sarwar, Qudratullah and Muhammad Anwar. Reliance was also placed on the recoveries; report of the Ballistic Expert and the Medical evidence.

5. Out of the respondent, Muhammad Ashraf, Aziz Khan and Mahanda denied to have taken any part in the incident and said that they had been falsely implicated being relatives of Bashir and due to enmity with the complainant party.

Bashir gave a detailed statement. He admitted that respondent Aziz was his brother and that he was the maternal uncle of Ashraf and Muhammad respondents. He also admitted that Baqir was married to Mst. Sakina Bibi daughter of Ahmad Din. The fact that Mst. Rajan Bibi was the mother of Sakina Bibi was also admitted by him. He admitted that Rajan Bibi contracted second marriage with Bashir eight years prior to the occurrence. Bashir further admitted that Mst. Rajan's father Budha was not happy over this marriage. The fact that Mst. Sakina and her mother Rajan Bibi inherited 40 Killas or land from Ahmad Din was also admitted. However, the allegation that he alongwith his brother Aziz abducted Sakina Bibi was denied by him. According to Bashir, Sakina Bibi quarrelled with her husband Baqir and came to the house of Aziz on her own.

It was further admitted by Bashir that his brother Aziz managed the institution of a suit for dissolution of marriage. Budha was the guardian of Mst. Sakina Bibi for her property and her brother Aziz respondents was her general attorney. The fact that, relations between the parties were strained was also admitted by Bashir. The rest of the allegations were denied. When further questioned "Is it a fact that Qudrat Ullah P.W. fired back in self‑defence with the gun he was carrying on his person ", he admitted this firing but said that it was not in self‑defence. Gun P.24, cartridge P.23/1‑4, licence P.26 recovered from Bashir were admitted to be his property. About his own injury, he said that he was hit by a pellet fired from Nawab and his party. The pellet was still in left hand near the base of thumb. Last of all he was questioned why this case against him, answer reads thus:‑

"The fact is that the complainant party came round my Dhari an hour or two before sunrise. Some of them came over to the roof of the Dhari and started indiscriminate firing. I received some pellet shots, which are still in my body. I also fired some shots in self‑defence. They got down from the roof and continued firing. I also fired in self‑defence. It was dark at the time of the occurrence. Yaqub my tenant, was also with me. He also fired some shots in self‑defence. My co‑accused were not with me at the time of the occurrence. The complainant party in order to save their skins have brought a false case against us. My gun was licensed with which 1 returned the fire. Some time after the occurrence, relations of the deceased came to take away the dead body from the spot, but I did not allow them to take away the dead body, till the arrival of the police. They had cone and assaulted us because they were under the impression that Mst. Sakina was at the Dhari on that night."

Bashir further said that he was innocent. He declined to produce evidence in defence.

6. We have heard learned counsel for the State as well as respondents and have gone through the relevant evidence. We would first of all deal with the medical evidence, than the ocular version and finally the other evidence and then proceed to examine the contentions raised by the learned State counsel.

On 4‑11‑1968 at 4‑30 p.m. Dr. Nasir Ahmad Qureshi, performed post‑mortem examination. He noticed the following injuries:

(1) A circular wound with inverted blackened margins on the back of head 1" to the right of midline size 1/4" x 1/4". It was going into the skull.

(2) A wound with irregular averted margins on the middle of the forehead size 1 x 1 x bone pieces were present in the wound. Injury No.l communicated with injury No.2.

On 4‑11‑1968 at 4 p.m. Qudratullah was examined by Dr. Muhammad Akram. He had a gunshot black line 1 x 1/8" grove shaped from below upwards on inner lower third of right forearm 1 above wrist joint. The injury was simple with a gunshot within the duration of 36 hours.

This very doctor on the same day also examined Baqir Khan and noticed an inlet gunshot wound with black inverted margins size of a medium nail head circular muscle deep on upper margins of right shoulder blade in between neck and right shoulder joint with no outlet wound. One pellet of medium size was extracted. The injury was simple caused by a fire‑arm within the duration of 36 hours.

On 3‑11‑1968 at 6‑54 p.m. Dr. Nasir Ahmad Malik examined Muhammad Sarwar. He had five injuries out of which the following two were declared grievous:‑

(1) A wound of entry x margin burnt at back of left forearm outer part.

(3) A wound of entry x with margin burnt at left side of abdomen above aliac crust.

The other injuries were simple. All had been caused by fire‑arm.

On 4‑11‑1968 Dr. Muhammad Akram examined Bashir respondent. He noticed two abrasions; one on the inner lower third of right thigh and the other in between thumb and index finger. These injuries were caused with blunt weapon. Duration was within 36 hours.

This very doctor on the same day examined Abdul Aziz respondent. He had an abrasion on the back of second phalynx of right middle finger. Its duration was 36 hours.

7. There are certain patent defects in the prosecution case. To begin with, it was alleged by the prosecution that the complainant party had gone to negotiate about the lease of land. As they got late, they stayed with Ahmad Din. The purpose of their visit was never mentioned in the F.I.R. There it was mentioned that they had gone for some business. The reason for staying for a night with Ahmad Din was that they apprehanded danger at the hand of the accused because of inimical relations. This does not appeal to reason when the prosecution's own case is that Aziz and Bashir had given up their residence in village Shamasabad being scared of the complainant party.

It has come in the evidence of Sarwar that he used to pass by the side of Dhari of Aziz respondent, yet no harm was done to him.

The fatal flaw in the prosecution case is that Qudratullah deposed that the accused came in front of them by jumping over a watercourse. They then stood in a ditch and started firing on them. Qudratullah fired in retaliation. He admitted that when the accused fired they were at a distance of 20/22 Karams. Same distance was given by Baqir P.W.

The ocular evidence does not tally with the medical evidence because the doctor noticed blackening around the injuries of the deceased as well as of Sarwar and Baqir. The injuries on the person of Nawab B had inverted margins besides blackening. The same goes for Baqir. This fact establishes close range firing and not from the distance given by the eye‑witnesses in their testimony. Although Qudratullah, Baqar Khan and Sarwar were injured from the prosecution side but their evidence does not inspire confidence. The prosecution has failed to give any reasonable explanation of so many crime empties found at the spot. All these facts taken together do not prove the case against the respondents beyond reasonable doubt.

We are also aware of the principles governing the case of appeals against acquittal. None of those are applicable in this case. Even otherwise, we don't think that the impugned order, in any way, resulted in miscarriage of justice. The appeal is accordingly dismissed. The bail bonds furnished by the respondents are hereby cancelled.

M. Y. H. Appeal dismissed.

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