ASGHAR ALI Versus THE STATE
IFTIKHAR HUSSAIN CHAUDHRY, C.J.--- Criminal case F.I.R. No.175/94 (Exh.PA) was registered at Police Station Saddar, Wazirabad, Gujranwala on 21-7-1994 at about 1-30 p.m. for offences under sections 302, 324, 148, 149, P.P.C on the statement made by Muhammad Mansha son of Muhammad Hussain, The occurrence in this case had taken place in the area of village Dodanwali Khurd located about 7 miles from the police station. According to Muhammad Mansha, he had four brothers and four sisters. Muhammad Nawaz was the eldest of the brothers, while Basharat Ali was the youngest. On the day of occurrence at about 12 O'Clock, Muhammad Mansha along with Basharat Ali, brother, Muhammad Hanif and Muhammad Ishaq were going from their Dera to Dera of abdul Qadir for bringing paddy saplings. Basharat Ali was proceeding ahead of them by few paces. Shahbaz Ahmed, brother of the complainant was coming from village side to Dera of Abdul Qadir, when Muhammad Abdullah, Ashfaq Ahmed, Asghar Ali armed with rifles, Riasat Ali and Liaquat Ali, armed with .12 bore guns were found present at the roof top of house of Muhammad Abdullah. They saw Shahbaz Ahmed, whereafter, Muhammad Abdullah shouted that Shahbaz be not spared. At this, the accused started firing with rifles and guns. Shahbaz ran towards Dera of Abdul Qadir. The accused came down from the roof top and started chasing Shahbaz Ahmed near the house of Walayat Masih, Muhammad Abdullah again shouted that Shahbaz and Basharat be done to death. Asghar Ali tired a shot with his rifle at Basharat Ali, Riasat Ali fired with .12 bore gun hitting Basharat Ali on his left elbow, Muhammad Abdullah, Ashfaq Ahmed and Liaquat Ali also fired at Shahbaz and others including the complainant, who were not injured. The accused thereafter, fled away while shouting. Basharat Ali died at the spot.
2. The motive or the incident, as given in the first Information Report was that a month prior to the occurrence, Ashfaq had been injured as a result of quarrel of children and a case was registered against Shahbaz Ahmed, brother of complainant who was on interim bail and to avenge that, the accused committed the offence.
3. Ghulam Haider, S.-I., P.W.9 recorded First Information Report, Exh.PA and went to place of occurrence, conducted investigation and took into possession crime property. The investigation, thereafter, was transferred to Shahid Zafar, S.-I./S.H.O., P.W.10, who arrested all the accused on 3-10-1994. The Investigating Officer recovered weapons of offence and thereafter prepared report under section 173, Cr.P.C. Names of Muhammad Abdullah and Muhammad Ashfaq were placed in Column 2 of the report, while Asghar Ali, Liaquat Ali and Riasat Ali were challaned to the Court. The case was later investigated by Riaz Ahmed, D. S. P., P.W.12, who found all the accused as guilty.
4. Charge under sections 302, 324, 148, 149, P.P.C. was framed against the accused by Additional Sessions Judge, Wazirabad. The accused claimed trial.
5. The prosecution examined 12 witnesses at the trial. Muhammad Nawaz, Muhammad Siddique, Ghulam Mustafa, and Muhammad Ishaq, P.Ws were given up as being unnecessary.
6, Muhammad Mansha complainant and Muhammad Hanif testified as P.W.1 and P.W.2 and provided the ocular account of the incident, Pervaiz Iqbal, Patwari, P.W.3 had prepared site plan (Exh.PC/1), Abdul Qadir P.W.4 identified the dead body, Shahid Moazam, Head Constable, P.W.5 had escorted the dead body to the mortuary. Muhammad Iqbal testified as P.W.6 Bashir Hussain, Head Constable appeared as P.W.7, Ghulam Haider, S.-I. testified as P.W.9, Shahid Zafar, Sub-Inspector/S.H.O. testified as P.W.10, Iftikhar Hussain, Constable, appeared as P.W.11 and Riaz Ahmed, D.S.P., P.W.12 also appeared before the trial Court in support of the prosecution case. The accused in their statements under section 342 Cr.P.C denied the prosecution against them. They denied the recoveries etc.
7. The trial Court disbelieved the firs of the incident. However, the second part of the incident, whereby accused were alleged to have gone after Basharat and fired at him, was believed by the trial Court to the extent of Asghar Ali accused and convicted him under section 302, P.P.C. and he was sentenced to death. A fine of Rs.50,000 was also imposed on the convict. Liaquat Ali. Riasat Ali, Muhammad Ashfaq and Muhammad Abdullah were acquitted of the charges vide judgment dated 23-10-1997.
8. Asghar Ali-convict submitted Criminal Appeal No.572 of 1997 against conviction and sentence awarded to him by the trial Court, which also referred the matter under section 374, Cr.P.C. vide Murder Reference No.271 of 1997 for confirmation of sentence of death.
9. Learned counsel for the appellant contended that there was background of enmity between the parties and, as a matter of fact, the dispute between the parties erupted after children of the parties had a quarrel with each other but beyond that, no serious incident between the parties had taken place. It was contended that Muhammad Abdullah was next door neighbour of the complainant party and even the roofs of their houses were adjacent and in case Muhammad Abdullah and others had designs to attack on the deceased or other members of the complainant party, they could have easily targeted them in their own courtyards. It was submitted that the prosecution case that accused went a-top their house and then started firing at the complainant party, was disbelieved even by the trial Court, and as for second part of the incident, where the accused were alleged to have gone after Basharat deceased, that was equally preposterous and could not be proved by witnesses. It was submitted that in case the accused appellant was present at the place (Point (a) of site plan Exh.PC/1), he could have targeted not only the deceased but also the witnesses, who were present with him, according to their claim, but none of the witnesses was injured in the incident. It was submitted that Shahbaz P.W., who, as a matter of fact, according to prosecution, had witnessed first part of the incident, was not even examined by the trial Court and that, as a matter of fact, was introduced only in order to show that it was pre-planned murder. It was submitted that testimony of Pervaiz Iqbal, P.W.3 clearly showed that there was no place, where the accused could have taken positions near the house of Walayat Masih and so far as deceased and P.Ws. were concerned, they were present near a watercourse where poplar trees were also standing and moreover, Dera of Abdul Qadir was also located closed by where deceased and P.Ws. could have taken shelter but this had never happened. It was submitted that, though, allegations were levelled that accused had tired about 40/50 shots but no mark of any missile-pellet/bullet was noticed on the Dera of Abdul Qadir and that clearly indicated that the occurrence had taken place in altogether a different manner. It was submitted that physical evidence did not support this aspect of the matter, either. It was contended that Shahid Zafar, P.W.10 had categorically stated that Akhtar Ali had tired at the deceased, who could not be arrested and the prosecution thereafter, threw a wider net and implicated all the members of family of Muhammad Abdullah, who were declared as innocent by Investigating Officer. It was submitted that the opinion of Investigating Officer with regard to innocence of Muhammad Abdullah and Ashfaq was based on considerable material and the same was endorsed by Saeed Ahmed Gondal, Deputy Superintendent of Police and Muhammad Nawaz Bhatti, D.S.P. (CIA), Gujranwala and opinion of these police officers could not be thrown out of consideration. It was submitted that the material on record viewed in proper perspective, led to an irresistible conclusion that only Akhtar had fired at deceased and appellant, as such, deserved acquittal from the case. The learned counsel for the State and complainant supported the impugned judgment and submitted that appellant was rightly convicted by the trial Court.
10. The prosecution case as revealed in F.I.R, indicated that two incidents had taken place on the day of occurrence. Firstly, complainant and others while proceeding to Dera of Abdul Qadir were fired at, from root top of house of Muhammad Abdullah. Shahbaz and Basharat started running away whereafter, Muhammad Abdullah and others were alleged to have come down from the roof-tops of their houses had chased the deceased and P.Ws. and thereafter, fired at them. The evidence on record shows beyond doubt that house of Muhammad Abdullah was located, in the main Abadi of the village. House of the complainant and that of Abdullah acquitted accused were adjacent to one another. In case Muhammad Abdullah and others were present at the roof tops of their houses and had tired at complainant party from there and thereafter had comedown down from the roof too and had run towards street to house of Walayat Masih; the complainant, witnesses. and deceased would easily have disappeared from the point at which they were present when the earlier incident had taken place. The first part of the incident was disbelieved by the trial Court and for good reasons, too. That finding of fact has not been assailed by the complainant and if the first part of the incident is kept out of, consideration, then the complexion of the case changes. Abdullah and others obviously would riot have seen from inside their houses as to where the complainant and others were present and would not have gone after them. Even otherwise, they were next door neighbours and accused party could have attacked the complainant and others quite conveniently while they were present near their houses. This aspect of the matter makes the case of the prosecution quite doubtful. This doubt with regard to manner in which the occurrence had taken place is further accentuated by the medical evidence. According to Dr. Altaf Hussain, P.W.8 deceased had four injuries on the dead body, which have been described as under:
"(i) A fire-arm entrance wound measuring 0.5 x 0.5 c.m. x going abdominal cavity deep with burning and inverted lacerated margins just below Rt. Costal margin 11 c.m. Rt. To the midline in Rt. side of abdomen.
(ii) A tire-arm exit wound measuring 1.5 x 1 c.m. with averted margins intestinal matter coming out of it on the left lumber region 2.5 c.m. above lt. Iliac crest and 12.5 c.m. Lt. to midline on back.
(iii) A fire-arm entrance wound measuring 0.5. x 0.5 c.m. x going deep with inverted and lacerated margins on inner and lower part of Lt. arm 3 c.m. above the medial epicondyle of Lt. Humerus.
(iv) A fire-arm exit wound measuring 1.5 x 0.5 c.m. with averted margins on outer and lower part of Lt. Arm 3, c.m. above olecranon process of ulna of Lt. arm; injuries No.3 and 4 were communicated with each other and Lt. Humerus was fractured at lower end."
Injury No. 1 shows that there was burning present around wound of entry on the dead body. This would mean that the fire-arm weapon was discharged from a very, close range. The bullet or missile after causing injury No.1, had exited through wound No.2 and then had again entered the left arm and then again exited from the other side. The wounds were caused by a single rifled bullet from a very close range. According to the prosecution, deceased was fired at from a distance of 226 ft. The injuries on the dead body could not have been caused from that distance. The medical evidence clearly contradicts the ocular account.
11. The incident had taken place in altogether different manner. The investigatory evidence also showed that deceased was fired at by Akhtar, who could not be arrested by the police nor was arrayed as one of the accused in the case. The investigatory opinion is based on material. That coupled with overall view of the entire material on record, we tend to believe that this was an opinion, which was not motivated and it fitted more adequately in the ambience of the case than the prosecution case itself. The enmity between the parties started with fight over the children and certain trivial incidents had also taken place but that aspect of the matter would not lead to the conclusion that the accused had launched a pre-concerted attack on the complainant party, including the deceased.
12. The overall view of the case leads to an irresistible conclusion that prosecution had planned a story in order to involve a large number or persons in the case. The role ascribed to present appellant was not established, rather it was contradicted by the medical evidence. The evidence of recoveries does not advance the case of prosecution in any manner. Consequently, while extending benefit of doubt to convict, we allow the appeal filed by him. Conviction and sentence awarded to Asghar Ali by the trial Court is set aside and he is acquitted of the charges. He shall be released from custody if not required in any other case.
13. The Murder Reference is answered in the negative.
M.B.A./A-792/L Appeal accepted.