MUHAMMAD YOUSAF Versus THE STATE

The appellant has preferred the present appeal against the judgment, dated 10-6-1990, whereby Mr. Muhammad Mahmood Ch., Additional Sessions Judge, Khushab, convicted him under section 304, Part II, P.P.C. and sentenced to 10 years' R.I. with a fine of Rs.30,000, or in default thereof to further undergo R.I. for one year. The amount of fine, if realized, was also directed to be paid to the legal heirs of the deceased in toto.

2. This judgment shall also dispose of Criminal Revision No.390 of 1990 filed by the complainant, Muhammad Siddique, for the enhancement of the sentence imposed on the appellant.

3. The brief facts of the case are that Muhammad Siddique, complainant (P.W.6) had recorded F.I.R. Exh.P.F. on 16-10-1989, alleging that he was sitting alongwith Abdul Majid, his nephew on a Tharra of his shop, meanwhile marriage procession of the daughter of Ahmed Khan Thethia came there and he alongwith Abdul Majid stood up upon the "Tharra" to observe the marriage procession, and that when the marriage procession had proceeded ahead, all of a sudden from its rear, Muhammad Yousaf son of Sardar, armed with .12 bore gun emerged and fired at Abdul Majid after reaching near the Tharra. That the said fire hit Abdul Majid in front of the abdomen who fell down, and when the complainant tried to catch hold of Muhammad Yousaf, he fired a second time and ran away. The occurrence was alleged to have been witnessed by the complainant himself, Khalil Ahmed son of Muhammad Nawaz and Muhammad Sher son of Faizullah.

The motive behind the occurrence was stated to be that Abdul Majid was studying in Quaidabad and was residing in Bandial in the house of his maternal-aunt, Mst. Alam Khatun and that Muhammad Yousaf suspected illicit relations of his wife, Mst. Saidi, with Abdul Majid and that due to injuries Abdul Majid had died there and then, and that he and Muhammad Siddique had proceeded to Police Station Gunjial wherein his statement, Exh.P.F. was recorded by Ahmed Khan (P.W.9) and that he had signed the same in token of its correctness after it was read over to him.

4. The investigation was conducted by S.I. (P.W.9), Ahmed Khan. He proceeded to the place of occurrence. He prepared injury statement, Exh.P.D. and inquest report, Exh.P.E., and handed over the dead body of Abdul Majeed to Muhammad Khan, Constable P.W. for taking the same to Civil Hospital, Quaidabad for post-mortem examination, where the post-mortem examination was performed by Dr., Muhammad Alam Shah, P.W.5. Thereafter, he carried out the spot inspection, collected blood-stained earth from the place of occurrence, made it into a sealed parcel vide recovery memo. Exh.P.B., and recorded the statements of P.Ws. On 17-10-1989, Muhammad Khan, Constable produced before him shirt P.1 and Shalwar P.2 belonging to the deceased. He had directed the Draftsman to prepare site plan, Exh.PA. and its duplicate copy, Exh.PA./1. On 3-11-1989, he arrested. Muhammad Yousaf accused. During the course of investigation Yousaf accused made a disclosure and led to the recovery of gun P.4 from his residential house. It was secured into possession vide recovery memo. Exh.P.F. During the course of investigation the accused was found involved in the case and accordingly he submitted the challan to the Court.

5. The accused had pleaded not guilty to the charges and was subjected to the trial.

6. To prove its case the prosecution had produced 10 P.Ws., whereas Fazal Karim, D.S.P., was examined as C.W.1. Muhammad Saeed, Ghulam Farid, Muhammad Khalil P.Ws. were given up by the prosecution being unnecessary. The report of Chemical Examiner was produced as Exh.P.J., whereas the report of Serologist was produced as Exh.P.K.

7. In his statement under section 342, Cr.P.C., the accused denied the commission of any offence by submitting that the motive was false and that he never committed the occurrence. In defence he produced Mst. Saidi as D.W.1. The accused himself appeared as D.W.2 under section 340(2), Cr.P.C. to rebut the allegations of the prosecution.

8. In order to prove its case, the prosecution produced Qutab Sher, H.C. as P.W.1. He had stated that on 17-10-1989, he was posted as Moharrir/Head Constable in Police Station Gunjial. On the said date, Ahmed Khan P.W. handed over to him a sealed parcel containing blood-stained earth for its safe custody in Malkhana. He kept the parcel in tact in Malkhana and handed over the same to Muhammad Khan P.W. on 23-10-1989, in tact.

9. Muhammad Saeed Draftsman was examined as P.W.2. He stated that he joined the investigation of the case. He visited the place of occurrence on 20-10-1989, and prepared the site plan, Exh.PA. and its duplicate copy, Exh.PA./1.

In cross-examination he stated that the place of occurrence was within the Abadi of Village. He further stated that the distance of point No.2 from point No.4 was 20 feet.

10. Muhammad Ismail was examined as P.W.3. He submitted that on 17-10-1989, at the time of post-mortem examination, he identified the dead body of deceased Abdul Majid.

11. Muhammad Khan Constable was examined as P.W.4. He stated that on 16-10-1989, posted in Police Station Gunjial, he had proceeded to the place of occurrence. The Investigating Officer had handed over to him the dead body of Abdul Majid deceased for taking the same to Civil Hospital, Quaidabad and had taken it there, where its post-mortem examination was performed by the doctor. After the post-mortem examination the doctor had handed over to him shirt P.1, Shalwar P.2 alongwith a sealed bottle containing pellet. He had produced the said articles before the I.O. and that they were taken into possession vide recovery memo. Exh.P.B. attested by him.

12. On 23-10-1989, Qutab Sher, Moharrir had handed over to him a sealed parcel containing blood-stained earth for its delivery to the office of Chemical Examiner, Lahore and that he had handed over the said parcel, in tact, in the said office.

13. Doctor Muhammad Alam Shah was examined as P.W.5. He stated that on 17-10-1989, as S.M.O. in Civil Hospital, Quaidabad, at about 8-00 a.m., he had performed post-mortem examination of the dead body of Abdul Majid son of Muhammad Siddique, aged about 18 years. It was brought by Muhammad Khan, and was identified by Muhammad Ismail and Ghulam Farid.

Upon external examination the following injuries were found:--

(1) Nine fire-arm lacerated, fire-arm of entry in a group in an area of 3 x 2-1/2 can. on the front left side of the abdomen, 2 inches from mid line. The lower side was at the level of umbilicus. Out of about 8 wounds were measuring 1/4" x 1/4" deep into abdomen and one wound measuring 1/2" x 1/2" x abdomen. The omenden was coming out of the wound.

(2) A fire-arm lacerated wound of exit 1/4" x 1/4" x through and through on the back of left side of chest, 1-1/2" from mid-line, upper 1/3rd level of injury No.1. Five pellets were recovered and the same were sealed in the bottle. It was found that left parietal visceral pleura was punctured and damaged. Left lung and lower as well as middle lobe was punctured and damaged. The paracardium and heart on the left side was punctured and lacerated. The blood vessels corresponding to the injuries were damaged. The abdominal wall was punctured at 9 places on the front left side of the abdomen.

In his opinion, the cause of death was due to shock and haemorrhage and damage to small intestine, large intestine, stomach, spleen, left kidney, left side of the heart and left lung, which were vital organs of the body. The injuries were caused by fire-arm weapon. The time which elapsed between injuries and death was immediate. Exh.P.C. was correct carbon copy of post-mortem examination. Exh.P.C./1 was pictorial sketch of the injuries.

14. Muhammad Siddique was examined as P.W.6. He supported the contents of F.I.R. He submitted that Abdul Majid was his real nephew. About 7 months earlier he was standing alongwith Abdul Majid upon a Tharra of his shop. In the meanwhile, marriage procession of the daughter of Ahmed Khan came from Bhan Thethianwala. From behind the marriage procession all of a sudden, Muhammad Yousaf appeared alongwith a gun. He opened fire at Abdul Majid, staying that today he shall not be spared. Abdul Majid fell down on the ground and died there and then. When he tried to catch hold of the accused, he fired a second shot and fled away. Stated that the motive for the occurrence was that Abdul Majid stayed in Bandial in the house of Mst. Alam Khatun, while a student at Quaidabad and that it was suspected by the accused that Mst. Saidi, his wife had established illicit relations with him; and that he had reported the matter to the police, vide Exh.P.F.

15. Muhammad Sher was examined as P.W.7. He stated that Abdul Majid deceased was known to him. About 7 months earlier at about 3-30 p.m. he was standing alongwith Muhammad Siddique in front of the house of Fateh Muhammad, whereas Abdul Majid deceased was standing alongwith Muhammad Siddique upon the Tharra of his shop. In the meanwhile, a marriage procession from Bhan Thethianwala came there and that from the rear of the marriage procession, accused, present in the Court, armed with .12 bore gun emerged and fired at Abdul Majid, who fell down on the ground and died there and then.

16. Ghulam Yasin was examined as P.W.8. He stated that he had joined the investigation of this case and that in his presence Muhammad Yousaf accused made a disclosure about .12 bore gun P.4 and led to its recovery, from his residential Kotha, secured into possession vide recovery memo. Exh.P.F., attested by him.

17. Ahmed Khan, S.I. was examined as P.W.9, who had investigated the case and had deposed as stated in para. 5 above. In cross-examination he stated that no one from the locality or for that matter from the entire town of Bandial was associated with the recovery proceedings of the gun P.4 and conceded that the said gun was not sent to the concerned exert to ascertain whether or not it was fired from. He further stated that, prima facie, the deceased appeared to be of 18 years. He denied the suggestion that he had come to the conclusion that Abdul Majid's murder was not premeditated by Muhammad Yousaf.

18. Fazal Karim was examined as C.W.1. He stated that on 3-11-1989, he was posted as D.S.P., Noorpur Thal. On the said date, he carried out the investigation of this case. He verified the investigation carried out by Ahmed Khan, S.I. In cross-examination he denied the suggestion that during the course of his investigation he had come to this conclusion that Abdul Majid was not murdered in a premeditated manner.

19. The learned trial Court, after taking into consideration the evidence on the record, had come to the conclusion that the appellant was not guilty of the offence under section 302, P.P.C. as charged, but that as the deceased was killed due to the negligence of the appellant, having been hit by a shot as a result of his indiscriminate firing as a participant of the marriage procession, and, therefore, had convicted him in the alternative under the provisions of section 304, Part II, P.P.C. and sentenced him as stated above.

20. The learned counsel for the appellant submitted that the learned trial Court had rightly disbelieved the motive but erred in law in placing reliance upon the recovery of the gun P.4 as the weapon of offence in the instant case. In this respect, pointed out that the gun P.4 had not been sent to the fire-arm expert to establish that a shot had been fired from the said gun, and in this respect, further submitted, that as no recovery of empty had been effected in the instant case, therefore, there was no evidence on the record to establish that the gun in question had been fired from killing the deceased. In this respect, further pointed out that P.W.9, Ahmed Khan, S.I. Investigating Officer had stated that the gun had not been sent to the fire-arms expert to ascertain whether or not the gun P.4 had been fired from. Further submitted that P.W.6 Muhammad Siddique was the paternal-uncle of the deceased, and that his testimony cannot be relied upon without independent corroboration which was not forthcoming the instant case. Further submitted that the other eye-witness, P.W.7, Muhammad Sher was not from the village where the occurrence had taken place and that in any case his testimony suffers from fatal contradiction to the effect that whereas earlier on he had stated that he was standing adjacent to the Tharra of the shop in question, where the deceased had been hit by the gunshot, but in his testimony during the trial he had changed his statement and stated that he was standing in front of the house of one Fateh Sher, and had further contradicted himself by changing his statement, deposing that there were not many persons present at the relevant time and place, though earlier he had stated to that effect.

21. The learned counsel's submission that the gun P.4 cannot be relied upon to prove that the deceased was killed by a shot fired from the said gun is duly borne out from the statement of P.W.9, Ahmed Khan, S.I. Investigating Officer, who had testified to the effect that the said gun P.4 had not been sent to the fire-arms expert to ascertain whether or not it was fired from. Furthermore, testimony of the said P.W.9 and C.W.1, Ch. Fazal Karim duly established that at the relevant time and place, indiscriminate firing had taken place by the members of the wedding procession, therefore, failing to prove beyond reasonable doubt that the deceased was killed by a shot fired by the appellant from the said gun, allegedly recovered from him, for it needs to be emphasised 'that as the recovery of the gun P.4 was not witnessed by any notable of the locality, or for that matter, by any person from the entire town in question, therefore, its alleged recovery fails to support the case of the prosecution in any manner; and the failure of the prosecution to prove the motive set up, further weakens its case against the appellant. In addition thereto, P.W.7, Muhammad Sher has failed to explain his presence in the village where the occurrence had taken place, as he belongs to a place ten miles away, and otherwise too, he had materially contradicted himself by changing his statement and submitting at the trial that he was standing in front of the house of one Fateh Sher, whereas earlier he had stated that he was standing adjacent to the Tharra of the shop where the deceased had been killed; and that in the absence of independent corroboration it shall not be safe to place reliance upon the testimony of P.W.6, Muhammad Siddique who happened to be the paternal-uncle of the deceased, especially as according to the prosecution evidence itself, the members of the marriage procession were indulging in indiscriminate firing and the possibility of a stray shot, thus fired, having hit the deceased cannot be ruled out. To sum it up, therefore, in accordance with the safe administration of criminal justice, it is hereby held that the prosecution had failed to prove beyond reasonable doubt that the deceased was killed by a shot fired by the appellant from the gun P.4.

22. In pursuance to the above discussion, extending the benefit of doubt thus arising to the appellant, the present criminal appeal is allowed and the impugned judgment is hereby set aside. Resultantly, the appellant is acquitted of the offence alleged. He shall be set at liberty forthwith, if not required to be detained in any other case.

23. For the reasons stated above, the Criminal Revision No.390 of 1990 is hereby dismissed.

N.H.Q./M-668/L Appeal allowed.