IKRAM ULLAH Versus THE STATE
KHAWAJA MUHAMMAD SHARIF, J. ‑‑‑This judgment will dispose of Criminal Appeal No.314 of 2001 and Criminal Revision No.155 of 2001, directed against the judgment dated 30‑1-2001 passed by Special Judge, S.T.A Court, Mianwali, whereby he convicted the appellants under section 324, P.T.C. and sentenced them to 10 years rigorous imprisonment each with fine of Rs.10,000 each and under sections 148/149, P.P.C. three years' rigorous imprisonment each with fine of Rs.3,000 each. In default of payment of fine under section 324, P.P.C. they were ordered to suffer further rigorous imprisonment for two years and in default of payment of fine under sections 148/149, P.P.C. further simple imprisonment; for six months.
2. The facts in brief as narrated by the complainant in the F.I.R., are that on 1‑9‑1999 at about 12‑30 noon the complainant alongwith Muhammad Riaz, his brother, Amir Abdullah his cousin, Muhammad Amir Khan, his uncle, Mst. Sakina Bibi, his to other and Mst. Zainab Bibi, his sister was proceeding to Mianwali to visit their injured uncle Shah Jahan who was admitted, in D.H.Q Hospital, Mianwali. When they reached near the house of Khan Gul Maakan, the accused persons, Mursaleen and Abdul Sattar (absconders) armed with kalashnikovs, Khaizar Hayat and Ehsan Ullah armed with .12 bore guns, Abdul Ghaffar, Nasrullah, Ikram Ullah armed with rifles, Sardar Khan, Inam Ullah and Rehmat Ullah armed With kalashnikovs, came, there. All the accused made Lalkara when Mursaleen accused fired a brust of kalashnikov hitting Sakina Bibi, mother of the complainant on the lower portion of her body, the second fire was made by Abdul Sattar with his kalashnikov hitting Mst. Zainab Bibi on her right leg, then all the accused made indiscriminate firing hitting the mother of the complainant. The complainant and other P.Ws. took shelter of the wall‑and the complainant also fired in response when all the accused decamped. The motive behind the present occurrence was that Shah Jahan uncle of the complainant had a quarrel with Mursaleen etc. And there was an exchange of firing but none was hit. Hence this occurrence in which the accused persons with the help of Sardar. Khan etc. killed the mother and injured sister of the complainant.
3. After, receiving information about the occurrence the police completed all the necessary proceedings and then Muhammad Sher Khan S.I. alongwith his subordinates proceeded to the spot. He prepared the injury statement of Mst. Sakina Bibi deceased and also prepared inquest report Exh.P.C. he secured blood‑stained earth from the place of occurrence where Mst. Sakina was killed, vide memo. Exh. P. U and he also took into possession blood‑stained earth from the place where Mst. Zainab Bibi was injured, vide memo. Exh.P.V. On 1‑9‑1999 he arrested Ikram Ullah accused alongwith rifle P.11 which was taken into possession by him vide memo. Exh. P. W. Last worn‑clothes of the deceased and also of the injured P.W. were also taken into possession by him vide memos. Exhs.P:Y. and P.X. On 13‑10‑1999 he arrested Ehsan Ullah and Abdul Ghaffar accused and he got recovered .12 bore gun P.1 from Ehsan Ullah vide memo. Exh.P.G and got recovered rifle P.9 from Abdul Ghaffar vide memo. Exh.P.M. On 28‑10‑1999 he arrested Sardar Khan and Inam Ullah accused with illicit arms and he took the same into possession vide memos. Exh.P.H and Exh. P. K. He arrested two accused Nasrullah and Rehmat Ullah in this case and sent them in Judicial Lock‑up. Mursaleen and Abdul Sattar were declared proclaimed offender after initiating all necessary proceedings against them. He completed the challan and submitted for trial.
4. The prosecution in order to prove its case has produced as many as 16 witnesses including Doctors, Investigating Officer, eye‑witnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Exh.A.C and that of Serologist Exh.P.A learned A.D.A closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded not guilty and claimed to be tried.
5. Learned counsel for the appellants in support of this appeal submits that five accused in this case have been acquitted by the learned trial Court, that Mursaleen and Abdul Sattar are still proclaimed offender, that as far as present appellants are concerned, no specific injury is attributed to them. He submits that deceased received one injury on both the legs and Mst. Zainab Bibi received one injury on her right leg. Learned counsel submits that the learned trial Court has also stated in his judgment that three persons from the side of the appellant's party were also injured during the occurrence. He submits that no crime empty was recovered from the spot, that number of the accused have been in fact exaggerated in the F.I. R. in order to falsely implicate the present appellants, that the appellants are closely related to Mursaleen and Abdul Sattar and that no case is made out against the appellants.
6. On the other hand learned counsel for the complainant who has also filed a revision petition submits that Ikram Ullah appellant is injured and his presence at the spot is, proved. Learned Counsel submits that defence has been taken by the appellant but no D.W. has been produced and no statement under section 340(2), Cr.P.C. was given by the appellant in order to rebut the prosecution evidence, that the F.I.R. is very prompt and comprehensive, that two of the accused are fugitive from law and are proclaimed offender, that recovery of crime weapons have been effected from the appellants and that the present appellants and the acquitted accused along with the absconders are closely related with each other and they were members of an unlawful assembly. Learned State Counsel supports the judgment of the learned trial Court and verifies what the learned counsel for the Complainants has stated.
7. I have heard the learned counsel .for the parties. In the instant case 10 accused were named in the F.I.R, out of drum five namely Nasrullah, Rehmat Ullah, Abdul Ghaffar, Sardar Khan and Inam Ullah have been acquitted through the same impugned judgment Mursaleen and Abdul Sattar are proclaimed offenders. According to the F.I. R. Mursaleen fired a shot with his kalashnikov hitting on lower part of the body of Mst. Sakina Bibi mother of Mst. Zainab Bibi injured P.W. Thereafter, Abdul Sattar proclaimed offender who was armed with kalashnikov fired hitting right leg of Mst. Zainab Bibi. Post‑mortem of Mst. Sakina Bibi was conducted by a lady Doctor Raheela Niazi who found three entry wound and 3 exit wounds. The number of accused is 10. The allegation levelled in the F.I.R. against the present appellants are that they fired indiscriminately which hit Mst. Sakina Bibi deceased after the fire shot made by Mursaleen hitting Mst. Sakina Bibi deceased. Had the appellants and the acquitted accused fired indiscriminately on, the deceased then there should have been much more injuries on the person of the deceased. No specific injury is attributed to any of the appellant.
8. Now I take up the case of Mst. Zainab Bibi injured P.W. She has received only one injury from the hand of Abdul Sattar proclaimed offender on her right leg. The injured Mst. Zainab Bibi was medically examined by Doctor Mehar Khan, Medical Officer, P.W.2 no crime empty was recovered from the place of spot, that on the same evidence five accused have been acquitted. No appeal against their acquittal was filed either by the State or by the Complainant. At this stage learned counsel for the complainant submits that appeal was filed against their acquittal but the same was dismissed. The, case of the present appellants is on similar footings to that of acquitted accused. It has been admitted by the learned counsel for the complainant and also by the learner trial Court that three persons including Ikram Ullah from the side of the appellant: were injured in this case but their injuries were suppressed by the prosecution. Learned trial Court while giving findings about the present appellants at page 20 of its judgment has stated as under:‑ "that none of fire of abovesaid accused person hit to Mst. Sakina Bibi deceased or to Zainab Bibi injured persons rather they made indiscriminate firing upon the complainant in the fight."
9. The two accused to whom specific injuries were attributed were armed with kalashnikov and the complainant and the injured had stated that a brust was fired by both Mursaleen and Abdul Satter, proclaimed offenders. If this was position then the possibility of three injuries received by deceased in this case have only been caused with one fire shot made by Mursaleen and not by other accused persons. All the accused are closely related inter se and possibility of their false implication cannot be ruled out. Prosecution has not approached the Court with clean hands. They have suppressed the injuries caused to the accused party including Ikram Ullah appellant. No injury to the injured was attributed to the present appellants. I am unable to understand that how the learned trial Court has convicted the appellants under sections 324/148/149, P. P. C.
10. After having heard the learned counsel for the parties and also going through the record, I am fully satisfied that the prosecution has not been able to prove its case against the present appellants. In this view of the matter this appeal is accepted and the conviction and sentence awarded to the appellants by the learned trial Court is set aside. The appellants are behind the bars. They shall be released if they are not required in any other criminal case. It is directed that any observations made in this case would not effect the case of either party as far as Mursaleen and Abdul Sattar proclaimed offenders are concerned.
N.H.Q./I‑115/L Appeal accepted.