MUHAMMAD NAWAZ Versus STATE
A case under section 302/307/148/149, P.P.C. was registered against Muhammad Nawaz, Maqbool Ahmad alias Kala, Muhammad Ashraf, Ilyas, Imtiaz and Riaz with Police Station Narang vide F.I.R. No.257 dated, 31-10-1987, on the statement of Muhammad Muneer. Imtiaz and Riaz were not found guilty and as such were not challaned by the police while the remaining four accused were tried by the learned Additional Sessions Judge, Sheikhupura on the aforesaid charges. Muhammad Nawaz and Maqbool Ahmad were convicted under section 302/34, P.P.C. for having murdered Sarfraz. They were, therefore, sentenced to life imprisonment plus a fine of Rs.10,000 each or in default of payment of fine to suffer further R.I. for two years by the learned trial Judge on 28-11-1990. They were directed to pay a sum of Rs.20,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to suffer six months' R.I. Benefit of section 382-B, Cr.P.C. was also given to them. However, Muhammad Ashraf and Ilyas were acquitted by the learned Judge vide the , same judgment for lack of evidence.
2. Briefly stated the facts, as mentioned in the F.I.R. Exh.P.G., are that Maqbool Ahmad had a quarrel with Sarfraz (deceased) about 1-1/2 years ago which was, however, settled down on account of intervention of the respectable of the village. Due to this incident, Maqbool Ahmad continued to have a grudge against Sarfraz. On 30-10-1987, Sarfraz, Muhammad Munir his father and Zulfiqar Ali P.Ws. were returning home from their land at about 9/10 p.m. When they reached near the paddy crop of Umar Din, Maqbool Ahmad and Nawaz (appellant) armed with .7 mm rifle, .12 bore gun respectively emerged therefrom. Maqbool Ahmad exhorted his co-accused to murder Sarfraz and others. They fired with their respective weapons and in consequence thereof Sarfraz received a solitary gunfire injury. He died of injuries on the spot. In the meantime, Muhammad Ashraf, Ilyas, Imtiaz and Riaz armed with .12 bore guns also reached the spot and started indiscriminate firing. No one was, however, injured because the witnesses ran away from the spot to save themselves from the attack. The accused fled away from the spot with their weapons. The occurrence was witnessed by the complainant Muhammad Munir, Zulfiqar Ali, Akbar Ali and Muhammad Malik.
3. On the statement of Munir Ahmad, F.I.R. Exh.P.G. was recorded by Liaquat Ali S.I. on 31-10-1987 at 1-45 a.m. He visited the spot. He prepared the injury statement Exh.P.K. and inquest report Exh.P.L. of the deceased and sent the dead body under the escort of Muhammad Saleem and Liaquat Ali F.Cs. to mortuary for conducting its post-mortem examination. He recovered the blood-stained earth vide memo. Exh.P.J. On the same day Liaquat Ali, F.C. produced before the Investigating Officer, the last-worn clothes of the deceased, Shalwar P.1, Shirt P.2 and Bunian P3 alongwith a sealed phial containing pellets which were taken into possession vide memo. Exh.P.B. He also got prepared the site plan Exh.P.H. and its duplicate Exh.P.H./1. He arrested the accused on 9-12-1987. On 13-12-1987, Muhammad Nawaz led to the recovery of shotgun P.4. Maqbool Ahmad led to the recovery of .7 mm rifle P.5. These weapons were taken into possession vide memos. Exhs.P.C. and P.D. respectively.
4. Dr. Mubashar Ahmad P.W.1 conducted the post-mortem examination on the dead body of Sarfraz on 31-10-1987 at 3-00 p.m. and found the following solitary injury on it:--
"(1) A fire-arm wound of entrance 1 c.m. x 1 c.m. on the left lower part of the neck just above the left clavical."
The doctor opined that death occurred due to shock, haemorrhage and cardio respiratory failure on account of above-said injury. The injury was sufficient to cause death in the ordinary course of nature. The injury was declared ante- mortem. It was caused with a fire-arm. He observed that a pellet (metallic foreign body) was recovered and kept in a phial. In cross-examination, the doctor deposed that the foreign metallic body was probably a broken piece of pellet or it might be a broken piece of bullet.
5. Report of the Chemical Examiner Exh.P.N. and that of the Serologist Exh.P.N./1 were positive inasmuch as it was stated that the earth was stained with human blood.
6. Eye-witness account was furnished by Muhammad Munir P.W.5, Zulfiqar Ali P.W.6 and Akbar Ali P.W.9.
7. The appellant Muhammad Nawaz denied the allegations levelled against him in his statement under section 342, Cr.P.C. He pleaded that he had been implicated in the case on account of political rivalry. To the same effect was the statement of the remaining accused. However, no evidence in defence was led by the accused.
8. At the very outset, learned counsel for the appellant has informed the Court that there was a compromise having been entered into between Maqbool Ahmad convict and the legal heirs of the deceased. He was, therefore, acquitted by this Court on 23-4-1991 vide Criminal Appeal No.869 of 1990. Learned counsel contends forcefully that the fatal injury was not attributed specifically to Muhammad Nawaz. However, learned counsel says that according to the prosecution evidence, the allegation was that Muhammad nawaz (appellant) and Maqbool Ahmad (acquitted accused) fired simultaneously at the deceased. It is maintained that the prosecution is not at all certain as to whose shot hit the deceased during the occurrence. He argued that after recording the evidence of Dr. Mubashar Ahmad P.W.1, the prosecution changed its version and stated that it was Muhammad Nawaz whose fire injured the deceased. Learned State counsel has defended the conviction and sentence of the appellant by adopting the reasons having been given by the learned trial Judge in his judgment.
9. I have heard the learned counsel for the parties at considerable length and have also gone through the record with care. There is force in the contentions of the learned counsel. The learned trial Judge did not believe the motive part of the prosecution story. The fact of recovery qua the appellant Muhammad Nawaz was also not believed. It was noted by the learned trial Judge that an attempt had been made by the complainant to implicate as many people as possible from the family of the accused. This observation itself was sufficient to discard the prosecution evidence on the basis of its falsity. The ocular account demonstrates that Muhammad Nawaz and Maqbool Ahmad fired simultaneously at Sarfraz The medical evidence, however, shows that there was only one fire-arm injury on the victim. Thus, evidence of P.W.1, Dr. Mubashar Ahmad would negate the eye-witness account having been given by P.Ws.5, 6 and 9. Munir Ahmad and Zulfiqar P.Ws. deposed that Nawaz was armed with a shot gun. However, Akbar Ali P.W.9 in his statement under section 161, Cr.P.C. stated that Nawaz was armed with a gun while he stated before the Court that he was armed with a rifle. This being so, the prosecution could not establish the exact nature of weapon with which Nawaz fired at the deceased. Even motive part of the prosecution was against Maqbool Ahmad accused and certainly not against the appellant. There was a quarrel having been taken between Maqbool Ahmad and deceased Therefore, the motive will not affect Nawaz appellant in the common of the crime. The prosecution has miserably failed to prove its case against the appellant Nawaz beyond reasonable doubt. Accordingly the appellant is acquitted of the charge by giving him the benefit of doubt. He shall be released forthwith provided, of course, he is not required in some other criminal case. The appeal succeeds and is allowed.
N.H.Q./M-956/L Appeal allowed.