NAZIR AHMAD Versus STATE
RASHID AZIZ KHAN, J. ---Nazir Ahmad, son of Fazal Din (48) alongwith Abdul Aziz, Safdar Ali, Muhammad Ashraf and Muhammad I1yas was sent up for trial by Police Station Manawan, District Lahore, for offences under section 302%307/148/149, P.P.C. Punjab Special Court for Speedy Trials No.I1, Lahore, vide judgment, dated 15-9-1988 under section 302/34, P.P.C. convicted and sentenced Nazir Ahmad to imprisonment for life with a fine of Rs.20,000, or in default two years' R.I. He was further directed to pay compensation of Rs.20,000 to the legal heirs of Abdul Rashid Buggar, deceased. As far as the remaining accused are concerned, they were given benefit of doubt and acquitted. The convict has filed an appeal. The State has also filed an appeal challenging the acquittal of co-accused of Nazir Ahmad appellant. Since both the matters arise out of the same judgment, therefore, this judgment shall dispose of both the matters.
2. Prosecution story in brief, as. disclosed in F.I.R. Exh.P.C. was that Fazal Ahmad, first informant was resident of Jallo village. Abdul Rashid alias Buggar, who was relation of the first informant, had a brick-kiln outside Jallo village and used to live there. Adjacent to his brick-kiln Akbar, son of Mahand Bakhsh had his brick-kiln. Four days before registration of the case, goats of Lal Wahla damaged the maiz crop of Nazir son of Fazal Din. Said Nazir exchanged hot words with Lal Wahla on this issue. Nazir Ahmad belonged to the party of Akbar Jat. Said Nazir Ahmad went to them and told them that Rashid Buggar had abused him and his son Javed Iqbal, whereupon on the same day at 4-30 p.m., first informant with Muhammad Sarwar, Asghar Ali and Rashid Ahmad alias Buggar with Boota were sitting at the brick-kiln of Rashid Buggar. In the meanwhile, Akbar, Javed Iqbal, Nazir Ahmad came to the brick-kiln to lodge protest. While discussing, both the sides started using hot words. Abdul Rashid told them to do whatever they wanted, whereupon those people went back while threatening that he should wait, they would be back. After some time, Akbar armed with Sota, Javed Iqbal with .7 mm rifle, Sharif armed with hatchet, Habib with Dang, Nazir son of Fazal Din armed with .12 bore gun, Abdul Aziz with .7 mm rifle, Safdar Ali with .12 bore gun, Ilyas armed with .12 bore gun, and Ashraf with .12 bore gun came to the brick-kiln of Rashid Buggar. They resorted to firing, whereupon Abdul Rashid and his brother took position in a water-course and started firing with their licensed guns at the assailants in self-defence. Abdul Rashid, son of Muhammad Sharif fired at Abdul Rashid alias Buggar with his .7 mm rifle, which hit him on his chest and he died at the spot. Firing done by the first informant side also injured the assailants.
Complaint Exh.P.C. was lodged on 14-6-1986 at 6-50 p.m. by Fazal Ahmad, which was recorded by Agha Muhammad Rafique, S.H.O. (P.W.9) at village Khara. Formal F.I.R. Exh.P.C./1 was recorded on the complaint Exh.P.C. on the same day at 7-15 p.m. at Police Station Manawan. It was with regard to the occurrence which took place the same day at 4-30 p.m. near Jallo village, adjacent to brick-kiln of Abdul Rashid Buggar.
Agha Muhammad Rafique, S.H.O., after recording complaint Exh.P.C. went to the spot and prepared injury statement and inquest report Exh.P.F. and Exh.P.G. of Abdul Rashid Buggar. He recorded the statements of the witnesses and arrested Abdul Aziz, Safdar and Nazir Ahmad on 22-6-1986. He got the site plan Exh.P.B. prepared from the Patwari and gave his notes in red ink thereunder. On 26-6-1986, he recovered .12 bore gun P.3 at the instance of Abdul Aziz, acquitted co-accused, and took into possession vide memo. Exh.P.E. After completion of investigation, he challaned the accused.
P.W.1 Dr. Saeed Ahmed, Demonstrator, Department of Forensic Medicine, K.E. Medical College, Lahore, on 15-6-1986 at 11-45 a.m. conducted the post-mortem examination on the dead body of Abdul Rashid Buggar and found the following injuries:--
(1) Circular wound with lacerated inverted margin size 0.75 x 0.75 c.m. present on front of left chest 5.5 c.m. above and medial to left nipple and 7.5 c.m. from midline.
(2) Fire-arm grazing wound present on the medial side of left leg 2.5 x 0.5 c.m. in size, 23 c.m. below left knee and 11 c.m. above left ankle.
In his opinion, death had occurred because of injury No.l which was sufficient to cause death in ordinary course of nature. The injury was ante-mortem and caused with fire-arm.
3. Prosecution in support of its case produced nine witnesses in all. P.W.1 Dr. Saeed Ahmad had conducted the post-mortem examination. Mukhtar Ahmad, Patwari, P.W.2 had prepared site plan Exh.P.B. Eye-witness account was furnished by Fazal Ahmad and Muhammad Sarwar, P.Ws.3 and 4, respectively. Case was investigated by Agha Muhammad Rafique, S.H.O., P.W.9. Rest of the witnesses are of formal nature, therefore, need not be discussed.
At the conclusion of prosecution evidence, the appellant was examined without oath wherein he refuted the prosecution allegations and pleaded innocence. He further stated that the complainant side was the aggressor and had committed the murder of four persons from his side.
4. It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that both the eye witnesses had made material improvements in their statements and thereby rendered them not worth reliance. Submitted that four persons on the side of the appellant were done to death and there were four injured, yet the witnesses have not disclosed this fact at all. Submitted that both the eye-witnesses stood belied by medical evidence because a pellet was recovered from the wound of Abdul Rashid Buggar, deceased, whereas eye-witnesses asserted that he was done to death with .7 mm rifle. The contentions were opposed by learned counsel for the complainant as well as for the State. Learned counsel for the State in support of his appeal submitted that the eye-witnesses were residents of the locality therefore, were natural witnesses and could be relied upon.
5. We have heard the learned counsel and gone through the file. No empty was secured from the spot, therefore, the recovery of gun in the instant case may not be of any help to the prosecution. The case solely rests on the ocular account which has been furnished by Fazal Ahmad and Muhammad Sarwar, P.Ws3 and 4, respectively. Both of them supported the prosecution case, but when put to the test of cross-examination, they could not explain the improvements which they had made in their statements. They were duly confronted with their earlier statements made before the police. Both of them categorically stated that the deceased was done to death with .7 mm rifle. Whereas, according to the doctor, a pellet was recovered from the wound of Abdul Rashid Buggar, deceased. It is well-established that .7 mm rifle cannot contain pellets. Even otherwise, the demeanour of the witnesses is not convincing. They did not give any explanation why they failed to mention the four deaths and four injured persons on the side of the appellant. In the absence of any corroboration, we hold it would not be safe to rely upon uncorroborated testimony of the witnesses who have discredited themselves by making improvements and suppressing material facts. This fact establishes that either the witnesses were not present at the spot or they were intentionally withholding the facts. In either case it would not be safe to rely upon uncorroborated testimony of such witnesses.
For what has been discussed above, we accept the appeal of Nazir Ahmad, convict, and set aside his conviction and sentence. He is on bail. His bail bond shall stand discharged.
As far as the State appeal challenging the acquittal of the respondents is concerned, we do not find any force in it. Case against them also rests on the uncorroborated testimony of the eye-witnesses who cannot be relied upon without independent corroboration. Resultantly, State appeal also fails, which is accordingly dismissed.
N.H.Q:/N-186/L Order accordingly.