MUHAMMAD ASLAM Versus THE STATE

Muhammad Aslam aged 40 years was arraigned for trial in the Court of Mr. Khalid Akhtar. Additional Sessions Judge, Depalpur. Vide judgment, dated 26-10-1992 he was convicted under section 302, P.P.C. and sentenced to life imprisonment and also to a fine of Rs.10,000 and in default of payment of the said fine to further undergo R.I. for two years. It was further ordered that if the fine is recovered it shall be paid to the legal heirs of the deceased. He was given the benefit of section 382, Cr.P.C. and it was also ordered that his rifle Exh.P.2 shall be confiscated in favour of the State.

2. Feeling aggrieved the appellant has challenged his conviction and sentence through jail vide Criminal Appeal No.7/J of 1993 while the complainant Muhammad Yousaf (P.W.3) has through Criminal Revision No.749 of 1992 prayed that the sentence of the appellant/respondent be enhanced to death. Both these cases are being heard and will be disposed of by this single judgment.

3. The present occurrence took place on 17-4-1990 at 6-15 p.m. in street adjacent to Roheela Road in the area of Basirpur Town near the house of the appellant. The statement Exh. P.A. was recorded at Police Station Basirpur on the dictation of Muhammad Yousaf complainant (P.W.3) by Muhammad Ali Sub-Inspector (P.W.12) at 6-45 p.m. The police station is situated at a distance of 2 Kms. from the place of occurrence.

4. The motive for the alleged offence as stated by the complainant in the F.I.R. is that Mst. Aamina Bibi (deceased) who happens to be a paternal-aunt of Mst. Naseem Akhtar the ex-wife of the appellant was not allowing the appellant to meet with his children.

5. Briefly the facts of the case are that after closing his shop he went to the sister's house at about 5-30 p.m. His mother Mst. Aamina Bibi (deceased) was present there. He alongwith his mother left for their own house for Iftari. When they reached at Buttock Road, they were met by Zafar Iqbal (P.W.4), Nazir Ahmed (not produced), Muhammad Mansha (P.W.5) and. the complainant offered them to breakfast and have Iftari at their house. All of them started towards the house of the complainant and Mst. Aamina (deceased) was at some distance ahead of them. When Mst. Aamina (deceased) reached near the house of the appellant he came out of his house armed with his rifle and said that he would teach her a lesson for not allowing him to meet his children and thereafter, he fired with his rifle which hit mother on the front of abdomen whereafter the P. Ws. started to run towards her. The appellant fired the second shot which hit his mother on the right side of chest and thereafter, she fell down and the appellant ran away from the spot alongwith his rifle. The deceased succumbed to the injuries. Leaving the dead body in the care of Zafar Iqbal, Muhammad Mansha and Nazir Ahmed, the eye-witnesses of this case he went to the police station and lodged report F.I.R. Exh.P.A.

6. The police arrived at the spot and prepared injury statement in respect of the dead body of the deceased, which is Exh. P.H. and inquest report Exh. P.I. and despatched the dead body for post-mortem examination. The blood-stained earth was taken into possession from the spot vide memo. Exh. P.B. and it was made into a sealed parcel. The accused was arrested on 21-4-1990 who was carrying rifle Exh.P.2. It was taken into possession vide memo. Exh. P.D. and made into a sealed parcel. The memo. was attested by Muhammad Yousaf (P.W.3), Muhammad Ali, Investigating Officer (P.W.12) and Muhammad Sharif (not produced). In course of investigation Muhammad Yousaf (P.W.3) produced a copy of agreement deed executed between the appellant and his ex wife Mst. Naseem Akhtar regarding the possession of the children. This document is Exh. P.1 and it was taken into possession vide memo. Exh. P.C After completion of the investigation the accused was challaned and sent up for trial. To prove the charge prosecution produced 12 witnesses. The accused was examined under section 342, Cr.P.C. and he denied the prosecution case and has stated as under:--

"I am innocent. The complainant party was inimical to me because I had divorced Mst. Naseem Akhtar P.W. who is paternal-cousin of Yousaf P. W. and on account of this enmity I have been falsely involved to this case. I had no grievance against Mst. Aamina Bibi regarding the custody of my daughters. It was an unseen and unwitnessed occurrence, which had taken place after sunset and during darkness. The complainant in collusion with the police changed the time of occurrence and lodging the F. I. R. after consultations."

He did not appear as his own witness to disprove the allegations against him. The appellant produced Naeem-ul-Ghani, Junior Clerk from the D.C. Office, Okara as D.W.I who proved that rifle 7 mm No.A-1172 was licensed. Rifle entered in the name of the appellant and that the said licence is entered at Serial No.~807, dated 7-8-1986 in the original register of arms licences, D.C. Office, Okara.

7. Dr. Shahid Farooq, Tehsil Headquarter Hospital, Depalpur appeared as P.W.6 and stated that on 18-4-1990 at 10-00 a.m. he conducted the autopsy on the dead body of Mst. Aamina Bibi aged 60 years and found the following injuries:--

(1) A fire-arm entry wound measuring 3 c.m. x 1 c.m. x going deep on the lower part of back of right side of chest, 3 c.m. away from the mid line of the body.

(2) A fire-arm exit wound measuring 1 c.m. x 0.5 c.m. x deep going on front of left side of chest 14 c.m. below the anterior axillary fold.

(3) A fire-arm exit wound measuring 2 c.m. x 0.75 c.m. x going deep on the front of left side of chest and it lies 1 c.m. outer to injury No.2.

(4) A fire-arm exit wound measuring 1.5 c.m. x 1 c.m. x going deep on the front of left side of chest and it lies 1.5 c.m. outer to injury No.3.

(5) A fire-arm entry wound measuring 1 c.m. x 1 c.m. x going deep on the lower inner quadrent of left buttock. Gun powder staining was present around the wound. Edges of the wound were inverted.

(6) A fire-arm exit wound measuring 4 c.m. x 3 c.m x going deep in the mid line of front of abdomen. It lies 5 c.m. below the umbilicus. Edges of the wound were everted. One deformed flattened metallic piece of a project tile was found lying in this wound.

He has opined that the death was the result of haemorrhage and shock due to injuries Nos. l to 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm. The time between injuries and death was almost sudden and between death and post -mortem was about 16 hours. Injuries Nos. l and 5 are the entry wounds while injuries Nos.3, 4 and 6 are exit wounds.

8. Learned counsel for the appellant has taken me through the entire evidence recorded and the record has been perused and scrutinised. The arguments advanced by the learned counsel for the appellant the State and the complainant have been heard at length.

9. It is well-settled principle of law that when the motive is not established by the prosecution then the accused cannot be saddled with the maximum penalty. In the present case the learned trial Court had disbelieved the motive. The learned counsel for the complainant was asked to give his reasons on basis of which the sentence would be enhanced. The learned counsel was not in a position to establish his case from the evidence and the material on the file. Hence keeping in view the settled principle of law to my mind it is not a case fit for enhancement of the sentence. Hence the criminal revision is dismissed being devoid of force.

10. The learned counsel for the State has supported the judgment and prayed that the sentence awarded to the appellant be maintained. The learned counsel for the appellant states that all the eye-witnesses except Muhammad Mansha are closely related to the deceased while Muhammad Mansha has been an apprentice/pupil with Muhammad Yousaf complainant (P.W.3) and as such he is under influence and obligation of the complainant. I find that no doubt there is no enmity between the parties except that the appellant had divorced Mst. Naseem Akhtar some years back and the document Exh.P-1 was executed in the year 1989 regarding the custody of the children and that could be a bad breath between the parties but since the matter pertains to the year 1989 and in between no untoward incident took place. Hence it is clear that the appellant was not carrying any grudge or ill-will regarding the matter which was past and closed transaction and thus had no motive to commit the offence

11. From the medical evidence it appears that both the entry wounds on this person of the deceased are on the backside of the body while the site plan and the statements of the eye-witnesses indicate that the deceased and the appellant were face to face when the occurrence took place and the deceased received injuries on the front side of her body. Though the prosecution witnesses have tried to improve their case and establish their credence as truthful witnesses of giving their testimony to line with the medical evidence yet the same has been confronted and established that all the three eye-witnesses who appeared were not present at the spot at the time of occurrence and that i; was a blind murder. Thus, I find that there is a serious material contradiction between the ocular account and the medical evidence. It is hard to digest without pinch of salt that these witnesses are in fact the eye-witnesses of the occurrence. Furthermore, the learned counsel for the appellant has argued that according' to the medical evidence it is a case where two different types of weapons have been used in the commission of the offence. This assertion carries no value as the doctor is neither eye-witness nor a fire-arm expert. It appears that the-accused has been framed in the present occurrence because he had divorced Mst. Naseem Akhtar and the complainant party was looking for opportunity to teach him a lesson.

12. From the above it clearly filters that the case against the appellant has not been proved beyond the shadow of reasonable doubt. Hence the appellant is entitled to its benefit as such he is acquitted of the charge. He is on bail. His bail bonds stand discharged. The learned trial Court had ordered that his rifle Exh.P.2 be confiscated in favour of the State since he has proved that it was a licensed rifle and also in view of the fact that he has been acquitted in this case rifle should be returned to him. Perusal of memo. Exh. P.D. through which rifle Exh.P.2. was taken into possession does not show the number of the rifle. However, the licence shows that rifle No. A-1172 stands entered on the licence proved to have been issued in the name of the appellant.

13. It is ordered that the rifle Exh. P.2. shall be returned to the appellant as and when he applies for its possession after confirming that rifle Exh.P.2. is carrying No.A-1172 as entered on the licence. If rifle Exh.P.2 is having a different number then it shall stand confiscated in favour of the State. With these observations the criminal appeal and the revision petition are decided.

N.H.Q./M-409/L Appeal accepted.