ABDUL FATEH Versus THE STATE Kh. Sultan Ahihad , Faiz Muhammad Bhatti for the State.,Muhammad Aslam Khan

The appellant Abdul Fateh son of Muhammad Yameen, aged 75 years, was convicted under section 302, P.P.C. for the murder of Muhammad Sadiq son 'of Fateh Muhammad, aged 20/21 years, and was sentenced to life imprisonment plus fine of Rs.10,000 and in default thereof to further undergo two years' rigorous imprisonment vide the judgment, dated 11‑7‑1987 passed by the .learned Additional Sessions Judge, Kasur. It was directed by the learned trial. Court that the fine if recovered, shall be paid to the heirs of the deceased, as compensation. The learned trial Judge observed that benefit of section 382‑B, Cr.P.C., shall be given to the appellant. The appellant has challenged his conviction and sentence through the present appeal.

2. Briefly stated, the facts of the prosecution case as stated by the complainant Fateh Muhammad (P.W.8) in his statement (Exh.P.B.) are that about 4/5 years ago, he had taken on lease a garden alongwith a field of sweet potatoes in Village Moeenabad Kot Radha Kishan, District Kasur from appellant Abdul Fateh and Abdul. Haq, sons of Muhammad Yameen. He stated that he, his sons Abdul Ghaffar (P.W.9) and Muhammad Sadiq (deceased) used to sleep in the night there in order to guard the garden. About 3/4 months ago, they had plucked Jamans and the appellant Abdul Fateh came at the spot and picked up some Jamans without paying any price whereupon the son of the complainant Muhammad Sadiq objected saying that he has taken the garden on lease by making cash payment and that the appellant should pay him the price o the Jamans. The appellant got annoyed over the demand of Muhammad Sadiq. The appellant asked Muhammad Sadiq that he should vacate the garden and give him the possessor of the same. The complainant further stated that yesterday at noon time i.e. 1‑11‑1984 the wife and the children of the appellant came and plucked the fruit from the garden. Muhammad Sadiq asked them not to pluck the fruit from the trees. Upon this, there was an exchange of abuses between them. The complainant stated that yesterday at evening time, the appellant hurled threats upon the complainant as well as upon Muhammad Sadiq, his son, saying that 'you give up the possession of the garden and pack up your paraphernalia and go away' because they had insulted the wife of the appellant. However, the complainant's son responded to the appellant that he will not vacate the garden unless the lease period of the garden is expired. Again. Muhammad Sadiq was threatened with dire consequences. The complainant stated that 'on the night of occurrence he, his son Abdul Ghaffar P.W, and Suleman P.W., son of Namdar, resident of Balaqa Singh, Police Station Bhai Pheru, were sleeping there in order to guard their fields: In the adjoining field of sweet potatoes the son of the complainant, Muhammad Sadiq was lying on a cot. At about 10/11 p.m. it was a moonlit night. The complainant, his son Abdul Ghaffar P.W. and Suleman P.W. were sitting and were chatting. In the meantime, from the cattle‑shed the appellant armed with a double barrel gun, came out towards the field of sweet potatoes where the son of the complainant, Muhammad Sadiq was lying on a cot. The appellant went straight under the banian tree and fired from his gun at Muhammad Sa iq. The victim Muhammad Sadiq cried saying that he has died. The complainant, Abdul Ghaffar and Muhammad Suleman P.Ws. rushed towards the banian tree. The appellant ran towards his house and hurled a threat that if the witnesses came near him, they will also be shot dead. The complainant stated the they were empty‑handed and, therefore, they did not chase the appellant. Muhammad Sadiq on the receipt of injuries died at the spot after some time.

3. Muhammad Navid Iqbal S.I. (P.W.12) was posted as S.H.O. Police Station Raiwind on 1‑11‑1984. On that day he was on patrol duty and was present at Chowk Man Singhwala at about 2‑10 a.m. in the night, where he recorded the statement (Exh.P.B.) of Fateh Muhammad complainant. Thereafter, the e,omplaint (Exh.P.B.) was sent through Muhammad Wakeel, Constable to the police station for the registration of a formal F.I.R. (Exh.P.B./1). The witness went to the spot and prepared the injury statement and the inquest report of the deceased vide Memos. Exhs.P.F. and P.H. The dead body of Muhammad Sadiq was sent to D. H. Q. Hospital, Kasur, for post‑mortem examination through Ahmad Din and Muhammad Shafi Constables. The spot was inspected by the witness. Blood‑stained earth from the spot and two crime empties P.4/1‑2 and live cartridge P.5, cot P.6 and Khes P.7 were taken into possession vide recovery memo. Exh.P.D. Wali Muhammad, Patwari (P.W.4) prepared the site plan of the place of occurrence Exh.P.C. The last worn clothes of the deceased were taken into possession vide memo. Exh.P.A. The appellant was arrested on 6‑11‑1984. On 11‑11‑1984, the appellant led to the recovery of .12 bore double barrel gun P.8 alongwith its licence P.9 from his residential house and' these articles were taken into possession vide memo. Exh.P.G. In cross‑examination, the witness admitted that the body of the deceased was not covered by any quilt. Khes of blanket, etc. He stated that he did not find any pellet marks on the Khes on which the deceased was lying. He admitted that the cot of the deceased was lying in the field of sweet potatoes under the shadow of banian tree.

The report of the Chemical Examiner (Exh.P.L.) shows that the articles sent to him were found stained with blood, whereas the report of the Serologist (Exh.P.M.) discloses that the same were stained with human blood.

According to the report of the Director, Forensic Science Laboratory (Exh.P.N.) the crime empty marked 'C' was fired from the gun P.8.

4. Dr. Captain Muhammad Anwar (P.W.6) on 2‑11‑1984 conducted the post‑mortem examination on the dead body of Muhammad Sadiq aged 20/21 years and found the following injuries on it:‑----

(1) Fire‑arm entrance wound on lateral side left chest on anterior axillary fold size 1 x 1 x 3 c. m. Blackening around the area was present. Corresponding holes were present on Kamiz.

(2) A fire‑arm entrance wound on lateral side left chest 1 x 16 c.m. x deep below injury No.1. Blackening around the area was present. Corresponding holes were present on the Kamiz.

(3) A fire‑arm entrance wound on front of left chest 1 x 1 x 5 c. m. deep. Blackening around the area was present. Corresponding holes were present on Kamiz.

(4) A fire‑arm entrance wound on lateral side left chest 1 x 1 x 4 c.m. deep, blackening around the area was present. Corresponding holes were present on Kamiz.

(5) A fire‑arm entrance wound on front of abdomen left side 1 x 14 c.m. deep. Blackening around the area was present. Corresponding holes were present on Kamiz.

(6) Fire‑arm entrance wound on fronto‑lateral side left abdomen I x 1 c.m. x exit wound deep. Blackening around the area was present. Corresponding holes were present on Kamiz.

(7) A fire‑arm exit wound on posterio‑lateral side left abdomen 2 x c.m. communicating to injury No. 6 entrance wound. Corresponding hole was present on Kamiz.

(8) A fire‑arm entrance wound on posterio‑lateral side left chest 1 x 1 x 2 c.m. deep. Blackening around the area was present. Corresponding holes were present on Kamiz,

(9) A fire‑arm entrance wound on right side abdomen, lateral side 1 x 1 x 4 c.m. deep. Blackening around the area was present. ‑Corresponding hole was present on Kamiz.

(10) A fire‑arm entrance wound on lateral side right abdomen 1 x 14 c.m. deep. Blackening around the area was present. Corresponding hole was present on the Kamiz.

(11) A fire‑arm entrance wound on back of left fore‑arm 1 x 1 c. m. x communicating to exit wound. Blackening around the area was present.

(12) A fire‑arm exit wound on front of left fore‑arm 12 x 1'‑,, c.m. x communicating injury No.11.

(13) A fire‑arm entrance wound on back of left wrist 1 x 1 c.m. x communicating to exit wound. Blackening around the area was present.

(14) A fire‑arm exit wound on front of left wrist 1 Z x 12 c. m. x communicating to injury No.13. .

(15) A fire‑arm entrance wound on back of left hand between little finger and ring finger lz x 1‑ c.m. x communicating to exit wound. Blackening around the area was present.

(16) A fire‑arm exit wound on front of left hand on little finger 2 x 2 c.m. x communicating to injury No. 15.

(17) A fire‑arm entrance wound on back and outer side left hand index finger with exit and blackening and wedge shape piece missing 2 x 2 c.m.

(18) A fire‑arm entrance wound on back of left hand thumb 2 x 2 c.m. x communicating, to exit wound. Blackening around the area was present.

(19) A fire‑arm exit wound on front of left hand thumb 3 x 3 c.m. x communicating to injury No.18.

In the opinion of the doctor, death was caused due to shock and haemorrhage on account of injuries Nos. 1, 2 and 5 which were sufficient to cause death in the ordinary course of nature. All the injuries mentioned above were ante‑mortem and were caused by a fire‑arm. Injuries Nos. 15 and 18 were declared grievous. Probable time between injuries and death was immediate and between death and post‑mortem examination was about 35 hours. In cross‑examination, the doctor categorically' stated that the injuries on the person of the deceased could not be the result of a single shot.

5. The eye‑witness account was provided by Fateh Muhammad complainant (P.W.8), Abdul Ghaffar son of the complainant (P.W.9) and Suleman son of Namdar (P.W.10) a relative of the deceased. Fateh Muhammad (P.W.8) has made a statement in Court in line with his statement (Exh.P.B.) ,made by him before the police. He narrated the same story of the prosecution before the Court which was disclosed by him before the police. He stated that appellant Abdul Fateh in the company of his children came to the‑ garden which was obtained by him on lease from the appellant and there from plucked some citrus fruit from the trees. On objection having been raised by the deceased Muhammad Sadiq there was an altercation between the deceased and the appellant. The appellant thereupon asked the deceased to vacate the garden and to hand over its possession to him. However; the deceased resisted and said that they had taken the garden alongwith the land on lease and that they will not give the possession of the garden and the land unless the lease period is expired. The deceased Muhammad Sadiq was present there for looking after the crop of sweet potatoes and was lying on a cot there on the night of occurrence. The witness stated that at about 10/il p.m. the appellant in the moonlit night while armed with a gun, came out from his cattle‑shed and went straight towards the banian tree. He fired on the deceased and thereafter ran towards his residential house. The witnesses rushed towards the accused, but he threatened them with dire consequences. They saw the deceased who expired after some time. In cross-examination, the complainant Fateh Muhammad conceded that no lease deed in writing was executed between the appellant and the witness regarding the garden and the adjoining land. He conceded that there was no entry in the revenue record about the lease of the garden and the land. He admitted it to be correct that no receipt was executed by the appellant showing the leasing of the garden and the land in favour of the complainant. The witness admitted that he was unable to tell as to how many shots were fired by the appellant at the deceased. The witness expressed his ignorance as to whether the deceased was having any blanket or quilt on him while he was, sleeping at the place of occurrence. Abdul Ghaffar (P.W.9) is the son of the complainant and his statement is to the same account. He admitted in cross‑examination that the appellant fired at the deceased from underneath the shade of banian tree. He expressed his ignorance as to whether the appellant fired one or two shots at the time of occurrence at the deceased. He also admitted that they used to sleep at the spot to look after their garden and the crop without having any Danda or Sota. Suleman (P.W.10) is a relative of the complainant and Abdul Ghaffar P.Ws. In cross‑examination he disclosed that he cannot tell as to whether the appellant fired one shot or two shots at the deceased.

6. The appellant denied the allegations levelled against him by the prosecution while making his statement under section 342, Cr. P. C. In answer to question No.6, the 'appellant stated that the dead body of Muhammad Sadiq was found lying in his land and, therefore, they had suspicion upon him and that the complainant party wanted to blackmail him in order to extort money from him. He pleaded his innocence. No defence evidence was produced by the appellant.

The learned trial Court after believing the eye‑witness account, recovery of double barrel gun and motive, convicted and sentenced the appellant as stated earlier.

7. The learned counsel for the appellant forcefully submitted that the prosecution has miserably failed to prove its case against the appellant. He submitted that the motive as set up by the prosecution in the case has not at all been proved by the prosecution by reliable and trustworthy evidence. Learned counsel stated that no documentary evidence has been produced to show that 'in fact the complainant party had taken the garden and, the land on lease from the appellant. The learned counsel maintained that although the garden and the land were taken on lease for the last so many years, yet there was no entry made in the revenue record regarding the lease nor any receipt showing the payment of any lease money was produced. On these premises, the learned counsel stated that the motive has been fabricated to involve the appellant in the case it is argued by learned counsel that this is a night time occurrence and has not at all been witnessed by the P.Ws. He stated that the case of the prosecution before the investigating agency was that the appellant fired only once and on the receipt of that fire Muhammad Sadiq died at the spot, whereas the prosecution witnesses have made considerable improvements before the trial Court. The learned counsel stated that the medical evidence has wholly contradicted the eye‑witness account provided by Fateh Muhammad (P.W.8), Abdul Ghaffar (P:W.9) and Suleman (P.W.10). The evidence of the Medical officer is that the injuries on the person of the deceased cannot be the result of only one shot. Learned counsel also attacked the veracity of the recovery in the case. Learned counsel stated that this is a case of no evidence and as‑ such, the appellant is entitled to be acquitted. Learned counsel for the State has supported the conviction and sentence awarded to the appellant by the learned trial Court. He stated that there are pellet injuries on the person of the deceased. He stated that there is no contradiction in the eye‑witness account and the medical evidence provided by the doctor. He submitted that the motive part of the prosecution story is proved beyond doubt inasmuch as the general practice in the village life is that lands and gardens are given without executing any document. The learned State counsel submitted that this is a case of single accused person and as such there is no question of substitution of the appellant.

8. I have heard learned counsel for the parties and have perused the record very minutely. I have given my anxious thought to the contentions raised by learned counsel for the parties in the case. I am of the view that the prosecution has not at all been able to prove its case beyond reasonable doubt. To begin with, I do not find any substance in the motive part of the prosecution story and I proceed to reject the motive. It cannot be believed that a garden alognwith a field wherein sweet potatoes were sown was given to the complainant party by the appellant without executing any documents. This is in the evidence that the garden plus the field was given on lease to the complainant party four or five years ago before the occurrence. If it was so, the fact of leasing out the garden and the land must have been mentioned in the revenue record like Khasra Girdawari, etc. It is further in the evidence that the complainant party had cultivated sweet potatoes in a field quite adjacent to the garden. Thus, the entry of the cultivation of the sweet potatoes in Khasra Girdawari must have been entered. No such Khasra Girdawari was produced by the prosecution to prove that the land as well as the garden were given on lease by the appellant to the complainant party. Therefore the facts and circumstances wholly belie the motive as set up by the prosecution. I am not prepared to believe the oral statement of the complainant Fateh Muhammad that he had taken the land and the very valuable garden from the appellant on lease without executing a, lease deed. The prosecution witnesses are unanimous on the point that no lease deed was executed, nor there was any entry in their revenue record about the fact of leasing out the garden and the land with the complainant party. It is again surprising and highly improbable that the complainant party will pay a heavy amount of lease money to the appellant without getting a receipt from him showing the payment of lease money. This is against the very natural human conduct pertaining to such like transactions. Thus, the motive has not at all been proved by the prosecution.

9. The presence of the eye‑witnesses at the spot also appears to be highly doubtful. The case of the prosecution before the investigating agency was that the deceased Muhammad Sadiq was lying on a cot under the banian tree and that the appellant came from his cattle‑shed from some distance and he straight went towards the tree and fired at the deceased. I am not prepared to believe the eye‑witness account that the witnesses were able to see the appellant while firing at the deceased because they were sitting at considerable distance and the deceased was lying under the shadow of a tree. Therefore, it was not possible for the witnesses to identify the assailant because of dense shadow of that tree. The prosecution has tried to make improvements while giving evidence before the trial Court. Their evidence before the trial Court was that in fact the deceased was lying in the field of sweet potatoes. This evidence is wholly contrary, to the case set up by the prosecution before the investigating agency., Further the prosecution has not been able to produce the blood‑stained cot or the blood‑stained Khes. The prosecution case was that the' deceased was lying on a cot over a Khes but the fact remains that the cot and the Khes were not blood‑stained. If the prosecution version is believed that the deceased was lying on the cot then the cot as well as the Khes must be blood‑stained. However, there are no blood‑stains on the cot as well as on the Khes. This will again. belie the prosecution version. Further the blood‑stained earth from beneath the cot was recovered and was taken into possession the report of the Serologist is that the said earth was stained with human blood. This is again very strange that when there was no blood found on the Khes or on the cot, then how the blood came down on the earth from the cot as well as from the Khes. This simply cannot happen as when the deceased was fired at. he was lying on the cot, then the blood must remain on the cot and the Khes and cannot overflow to the ground. Even all the eye‑witnesses stated unanimously that they were not in a position to say whether the victim was standing or sitting when he was fired at by the appellant. Similarly, the witnesses disclosed that they cannot tell exactly as to whether one shot or two shots were fired by the appellant at the deceased. This trend of the prosecution evidence, will strengthen the belief that the witnesses were not present at the' spot. If they were present at the spot, they must at least know as to how many shots were fired by the appellant on the deceased. The prosecution case at the investigation stage was that only one shot was fired, whereas they made considerable improvements during the trial and took the position that in fact more than one shot was fired by the appellant at the deceased. This was purposely done in order to bring the case of the prosecution in line with the medical evidence. The doctor who conducted the post‑mortem examination on the dead body of the deceased categorically stated that the injuries on the deceased could not be the result of one shot. Thus, it is established that the eye‑witness account is not at all in line with the medical evidence. Accordingly, no credence could be given to the prosecution' witnesses. Apart from that, the P.Ws. are related and interested inter se. Fateh Muhammad (P.W.8) is the father of the deceased and similarly Abdul Ghaffar (P.W.9) is the real brother of the deceased and son of the complainant. Suleman (P.W.10) is a close relative of the complainant party although he has tried to deny this fact of relationship.

10. The recovery of gun could not be believed. It may be noted that two crime empties P.4/1‑2 were allegedly recovered from the place of occurrence as stated by Muhammad Naveed Iqbal S.I. (P.W.12) on 2‑11‑1985. However, these empties were not sent to the office of the Forensic Science Laboratory for examination purposes. It may be seen that some other packet containing only one empty was handed over by the Investigating Officer to Muhammad Siddiq H.C. (P.W.2) who in turn gave the same parcel of one empty cartridge to Ahmad C Din, Constable (P.W.1) on 5‑11‑1985. Thus, it is clear from this narration that the parcel containing one cartridge had nothing to do with the two cartridges allegedly picked up from the place of occurrence which were taken into possession and were sealed in one parcel. In my view the sealing of one cartridge instead of two which were actually taken into possession according to the story of the prosecution, appears to be fabricated and cannot be believed in view of the evidence of the prosecution itself. Thus, the factum of recovery of gun and the crime empties will not at all be available to the case of the prosecution. I am firm in my belief that the prosecution has failed to prove its case against the appellant beyond doubt.

11. The upshot of the above discussion is that I proceed to accept' the appeal, set aside the conviction and sentence awarded to the appellant by the trial Court and acquit him. The appellant shall be released from jail forthwith provided of course he is not required in any other criminal case.

S. A. /A‑266/L Appeal accepted.