SHER AFGHAN ALIAS SHER MUHAMMAD ALIAS SHAHZAD Versus THE STATE Hakim Muhammad Sardar Khan , Sadiq Hayat Lodhi
This Criminal Appeal No. 528 of 1985 arises from the judgment of the learned‑ Additional Sessions Judge, Gujrat whereby he on 11‑7‑1985 convicted Sher Afghan alias Sher Muhammad appellant under section 302/34, P.P.C. for the murder of Muhammad Khan and sentenced him to imprisonment for life and a fine of Rs.10,000, in default thereof to further S.I. for three months with the direction that the fine when recovered be paid to the legal heirs of the deceased.
2. The occurrence took place on 17‑4‑1983 at 7 a.m. at brick kiln of Abdul Ghani situated in the area of village Dewana at a distance of two miles from the Police Station, Saddar, Gujrat. F.I.R. Exh. P.C. was lodged by Ghulam Muhammad P.W.4 brother of the deceased on the same day at 10‑30 a.m. and was recorded by Ch. Muhammad Ashraf, S.H.O. (not produced).
3. The motive allegedly was land dispute between Sarang and others on the one side and the complainant party on the other side. The parties were locked in criminal litigation, hence this occurrence.
4. As far the main occurrence, it has been stated that at the eventful time, Muhammad Khan deceased alongwith Ghulam Muhammad P.W.4 and Khan Muhammad P.W.9 were going from the village Chandala to District Courts Gujrat for attending a case. When they reached near the brick kiln of Abdul Ghani, Sher Afghan appellant, Sarang Gut, Muhammad Zaman and Noor Hussain suddenly appeared from behind the wall of room of tubewell. Sher Afghan was armed with .12 bore gun and the others were carrying rifles. They opened fire on Muhammad Khan deceased hitting on the right arm and on the right flank, who fell down and died on the spot. The appellant and co‑accused ran away taking the weapons with them.
5. On 17‑4‑1983, Dr. Muhammad Aslam Chaudhary P.W.10 performed post‑mortem examination on the dead body of Muhammad Khan. He found following injuries:‑‑
(i) A fire‑arm wound of entry 3.2 c.m. x 2.2 c.m. with inverted margins with tatooing and blackening around, over the right side of right lower chest. There were two very small abrasions below the injury. There was corresponding holes in the clothes, that is shirt and saluka.
(ii) A fire arm wound of entry 5 c.m. x 3 c.m. with inverted margins over back of lower part of right fore‑arm.
(iii) A fire‑arm wound of exit with overted raggid irregular margins 9 c.m. x 4.5 c.m. on over front of right fore‑arm. There were correspondent cuts in the shirt."
In his opinion, the death was due to shock and haemorrhage as a result of injury No.2 which was sufficient to cause death in the ordinary course of nature.
6. The appellant was arrested on 8‑6‑1984 by Ghulam Muhammad, A.S.I. P.W.7 from city Gujrat. At the time of his arrest, the appellant was carrying gun P.6 and live cartridges P.6/1‑2 which were taken into possession vide memo. Exh. P.D. attested by Fateh Khan, A.S.I. P.W.6 and Fazal Ahmad (not produced) and Ghulam Haider, A.S.I. P.W.7. It may be noted that since no crime empty was removed from the place of occurrence, therefore, the gun was not sent to the forensic science laboratory for report.
7. To prove its case, the prosecution produced 11 P.Ws. Ghulam Muhammad P.W.4 and Khan Muhammad P.W.9 have given the ocular account of the occurrence. They claimed to have seen the appellant and his three co‑accused coming to the spot duly armed and firing shots hitting the deceased. According to the statement of the eye‑witnesses before the Court, the shot fired by the appellant hit on the arm of the deceased and the fire shot by Muhammad Zaman hit on the flank of the deceased. Ghulam Muhammad P.W.4 has also deposed about the motive of the appellant and his co‑accused to do away with the deceased. Fateh Khan P.W.6 and Ghulam Muhammad, A.S.I. P.W.7 have deposed about the recovery of gun from the appellant. Dr. Muhammad Aslam has proved the post‑mortem examination of the deceased. The rest of the evidence is more or less of formal nature. It may be noted here that the three co‑accused namely Sarang Gut, Muhammad Zaman and Noor Hussain were declared proclaimed offenders and were proceeded against under section 512, Cr.P.C. Sarang Gut and Noor Hussain are by now dead as stated by counsel for the parties.
8. When examined under section 342,"Cr.P.C. the appellant denied all the incriminating circumstances. He also gave evidence under section 340, Cr.P.C on oath in disproof of charge and denied his participation. No evidence was produced in defence.
9. The learned trial Court while believing the motive, ocular evidence and the recovery of the gun from the appellant has convicted and sentenced him as stated above.
10. Learned counsel for the petitioner submits that the prosecution has failed to prove its case beyond reasonable doubt; that the two eye‑witnesses are closely related to the deceased; that there is no independent corroboration of their statements; that the site plan does not support the eye‑witnesses; that the statements of the eye‑witnesses suffer from discrepancies, contradictions and improvements; that the part attributed by the eye‑witnesses to the appellant that he had caused fire‑arm wound on the arm of the deceased was not mentioned in the F. I. R. Learned counsel for the State has supported the judgment of the trial Court.
11. I have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution; statements of, the accused recorded under section 342, Cr.P.C. the evidence given by the appellant in disproof of the charge against him and the circumstances appearing in the case. I feel persuaded to agree with the learned counsel for the appellant. I find that the fate of the case depends upon the weight to be attached to the statement of the two eye‑witnesses namely Ghulam Muhammad P.W.4 and Khan Muhammad P.W.9. Ghulam Muhammad P.W.4 is real brother of the deceased. Neither he nor Khan Muhammad are the injured witnesses, so there is no circumstantial guarantee or judicial certainty of their presence on the spot at the time of occurrence. Khan Muhammad P.W.9 on his own showing was accompanying the deceased and the complainant for attending a criminal case, so his close association with the complainant party is very much obvious. He does not reside near the place of occurrence and in the circumstances of the case, was a chance witness of the occurrence. There are reasons to doubt that he was accompanying the complainant and the deceased at the time of occurrence. Ghulam Muhammad stated that Khan Muhammad had come to him on the day of occurrence, whereas he stated that he had come to Ghulam Muhammad a day before the occurrence. There were two injuries on the person of the deceased. Against these two injuries, the prosecution involved four persons in the case. No specific injury was attributed to the petitioner by Ghulam Muhammad in the F.I.R. and by Khan Muhammad in his statement recorded under section 161, Cr.P.C. Strangely enough at the time of trial they assigned one of the injuries found on the person of the deceased to the appellant. This shows that the witnesses have not given evidence with a motive to tell the truth but since the other co‑accused had absconded and only Sher Afghan had been arrested, therefore, the two eye‑witnesses made dishonest improvement at the time of trial and assigned specific injury to the appellant. The statements of the two eye‑witnesses are not corroborated by any evidence or a circumstance. The appellant had no direct enmity against the deceased. The recovery of gun P.6 in the absence of crime empty from the spot as of no consequence. As far the circumstance of his absconsion, Ahmad Khan P.W.11 stated that the three accused other than the appellant had absconded after the occurrence. For all these reasons, I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt.
As a consequence of the above discussion, the appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case.
M.Y.H./S‑240/L Appeal allowed.