ALLAH DITTA Versus THE STATE

This judgment will dispose of Criminal Appeal No. 1847 of 2000 filed by Allah Ditta appellant, who was convicted and sentenced by learned Additional Sessions Judge. Sheikhupura vide his judgment dated 2‑11‑2000 to undergo imprisonment for life under section 302(b), P.P.C. and a fine of Rs.50,000 or in default three months' S.I. with the benefit of section 382‑B, Cr.P.C.

2. Occurrence in this case had taken place at 1‑30 p.m. on 8-5‑1996 within the jurisdiction of Police Station Bara Garh, District Sheikhupura at a distance of 8 K.Ms while the matter was reported to the police by Muhammad Anwar complainant through complaint Exh.P.B on the same day at 2‑40 p.m. and the formal F.I.R. Exh.P.B/1 was recorded by Muhammad Aslam Moharrar in the Police Station at 3‑00 p.m.

3. Brief facts of the case as disclosed by Muhammad Zawar in his complaint Exh.P.B are that on 8‑5‑1996 at about 1‑30 p.m., he alongwith Ahmad Ali alias Kala son of Qasim, Nawab son of Sajawal and Lal son of Ahmad Ali was proceeded from Dhari of Ahmad Ali alias Kala towards west to have a round of wheat field and when reached near Wadh Gandum of Sardar Muhammad Arif son of Akbar and were on watercourse, all of a sudden, Allah Ditta armed with rifle, Arif armed with a rifle, Muhammad Sadiq empty handed, Iqbal alias Bala armed with a rifle, Jehangir armed with a rifle and Lal armed with .12 bore gun who were ambush in wheat field came out. Sadiq raised a lalkara to teach a lesson for litigation on the dispute of land and the other accused then started making fires from their respective weapons. Allah Ditta accused has inflicted a fire‑arm injury on the person of Ahmad Ali alias Kala which landed on right thigh and has exit from his chest. Arif has inflicted fire‑arm injury which landed on the right thigh of Ahmad Ali alias Kala. The complainant alongwith others have rescued themselves on the bank of watercourse. On their hue and cry, the people from the adjoining Dharies were attracted and the accused have made their escape good on seeing them while making firing with their respective weapons.

The motive behind the occurrence was that Allah Ditta and Lal have a dispute of land from a previous long time and a litigation was pending.

4. After registration of the formal F. I. R. Muhammad Tufail S. I. P.W.17 proceeded to the place of occurrence, prepared inujury statement Exh. P. F and inquest report Exh.P.G, inspected the spot, collected blood‑stained earth which was taken into possession vide memo. Exh.P.C, recorded the statements of the witnesses under section 161, Cr.P.C. On 5‑6‑1996 he arrested accused Muhammad Sadiq, thereafter, investigation was entrusted to Muhammad Sharif S.I. P.W.13, who on 30‑9‑1998 arrested Allah Ditta accused/appellant, at the time of his arrest rifle Mark‑4/P.6 alongwith 40 alive bullets Exh.P.7 was secured which was taken into possession vide memo. Exh.P.S then after the completion of investigation the challan was submitted against the accused to face the trial.

5. At the trial, prosecution in order to prove its case produced 17 witnesses in all, thereafter, learned ADA tendered in evidence report of Chemical Examiner pertaining to earth Exh.PY, report of Serologist Exh.P.Z, report of Forensic Science Laboratory Exh. P. AA and closed the prosecution case then the statements of the accused were recorded under section 342, Cr.P.C: in which they pleaded innocence and claimed false implication.

6. In support of this petition, learned counsel for the appellant submits that it was an un-witnessed occurrence, that no crime empty was recovered from the spot, that there is a conflict between ocular account and medical evidence, that eye‑witnesses were not present at the spot, that according to the statement of Allah Ditta Patwari P.W.16 none of the eye‑witness had either place of residence there or the cultivating land, that motive has not been proved, that there is‑no independent corroboration in the instant case from any source, that on the same set of evidence, five co‑accused of .the present appellant namely Muhammad Arif, Muhammad Sadiq, Iqbal, Jehangir and Lal have been acquitted by the learned trial Court, that it was a blind murder, that there are material contraditions in the statements of the witnesses, for example Muhammad Anwar complainant P.W.11 submitted that wheat crop was lying on the ground after cutting the same but there was no wheat crop at the place of occurrence at the time of occurrence, moreover name of none of the eye‑witnesses has been mentioned in the first inspection note nor in the site plan prepared by Allah Ditta Patwari P.W.16.

7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant, who has filed Criminal. Revision No.33 of 2000 for the enhancement of sentence submits that it was a broad‑day light occurrence, F. I. R. was lodged promptly, that there was no question of, mistaken identity, that ocular account is corroborated by medical evidence, that previous litigation was admitted by the parties, that eye‑witnesses had seen the appellant while firing at the deceased, that it is a case of single accused, that there was no question of substitution because substitution is a rare phenomenon, that there was no need on the part of the complainant to falsely implicate the appellant in this case and that site plan is not a substantive piece of evidence.

8. I have heard learned counsel for the parties. The only point for consideration in my opinion that there is a conflict between ocular account and medical evidence. In this connection, I would like to reproduce the version of the complainant which he gave in the F.I.R. which is Exh.P.B. According to him, "the first fire was shot by Allah Ditta, appellant, which hit Ali Ahmad deceased on his right thigh and it created an exit wound from the chest of the deceased while the second fire was shot by Muhammad Arif (acquitted co‑accused) which hit on the right thigh of deceased." This is also the statement of the eye‑witnesses produced by the prosecution, namely, Nawab, examined as P. W.12, who claimed himself to be an independent and impartial witness. According to his statement which is Exh.D.A, he made the same statement which the complainant has made in the F.I.R. but this fact is totally denied and contradicted by Dr. Khalid Mahmood M.O P. W.5, who conducted the post‑mortem examination on the dead body of the deceased on 9‑5‑1996 at 3‑00 p.m. stating that injury on the person of the deceased on his chest was an entry wound and this is injury No.3 in the post‑mortem report while injuries No. 1 and 2 are respectively entry and exit wound, it means the eye‑witnesses in order to make in lines their statements with the post‑mortem report changed their versions before the learned trial Court while making statements on Oath and the statement of both the eye‑witnesses were duly confronted with the F.I.R. Exh.P.B and statement of P.W. Nawaz Exh.D.A. Had these witnesses been present at the spot, they could not miss to state the real facts which was brought on record according to the report of post‑mortem examination. The contention of learned counsel for the complainant that learned trial Judge has solved this controversy by elaborating that deceased was not a statute, he must have turned; even the learned counsel for the appellant has submitted that at the time of firing deceased had turned and the' complainant's counsel further submitted that in fact the deceased was also in sitting posture at the time of firing. I am not going to accept the reasoning of the trial Court and the complainant. It was not the case of prosecution that deceased was in sitting posture. The case of the prosecution was that deceased and the P. Ws. was coming from the other side when there was firing from a distance of 20 karams. Both the eye witnesses are not resident of the place of occurrence, I discard their testimony, they are not believable witnesses, they were not present at the spot and further occurrence had taken place at 1‑30 p.m. on 8‑5‑1996. According to the prosecution case, complaint was lodged at 2‑40 p.m. on the same day, formal F.I.R. was lodged at 3‑00 p.m. police reached at the spot after the occurrence, no crime empty was recovered from the spot but the post‑mortem examination was conducted on the next day i.e. 9‑5‑1996 at 3‑00 p.m., it means that nobody was present at the spot, F.I.R. was recorded after due deliberation and consultation and so it was the reasons that post‑mortem examination was conducted with such a delay.

9. As far as, recovery from the appellant is concerned, it has got no value because no crime empty was recovered from the spot.

10. Now I take up the case of motive, even the learned trial Judge in paragraph No.32 of his impugned judgment has stated that it was a case of weak motive. According to the F.I.R., there was litigation between Allah Ditta and Lal, who was present at the spot, he was not produced by the prosecution. Had .he been present at the spot then he should have been the first target of the present appellant, he was never touched, he was not injured in this case, nobody had fired at him, he was not produced by the prosecution so that actual facts may not come on record, even the prosecution has failed to prove the motive, through every piece of evidence produced by the prosecution. On the same set of evidence Muhammad Arif co‑accused of the present appellant, who was attributed to fire‑arm injury on the right thigh of the deceased has been acquitted by the learned trial Court and against his acquittal Criminal Appeal No. 19 of 2002 which was filed by the complainant has also been dismissed by this Court.

11. After having heard the learned counsel for the parties, going through the record and the submissions made by learned counsel for the parties I am of the considered opinion that prosecution has failed to prove its case against the appellant beyond any shadow of doubt because there was no reason on the part of the appellant party to commit the murder of the deceased and deceased was not even resident of the place of occurrence but was resident of a place which was at a distance of 25/26 K. Ms from the place of occurrence. Resultantly, the appeal tiled by the appellant is accepted. The conviction and sentence recorded against the appellant by the learned trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.

N.H.Q./A‑436/L Appeal accepted.