ABDUL HADI vs WALI MUHAMMAD and 3 others

1. ' MUHAMMAD ASHRAF LECH ARI, J.---Ths Criminal Acquittal Appeal is directed against the impugned judgment dated 3-5-1998 passed by Additional Sessions Judge, Ghotki in Sessions Case No,137 of 1994, under section 302/34, P.P.C., whereby he acquitted the accused/ respondents Nos.1 to 3 (hereinafter referred to as the accused).

2. ' Complainant Abdul Hadi lodged F.I.R. With Mirpur Methelo Police Station, stating that he was living along with his brothers Sultan, Abbas and Qasim and their father Gaman. They have raised their houses over a piece of land which originally belonged to their uncle Piaro. Their father had purchased this land from Piaro and the latter died immediately. After the death of Piaro, his sons Haji Ali, Abdul Ghafoor and Pehlwan pressurized the father of complainant to vacate the land. They filed a Civil Suit in respect of aforesaid land about 4/5 days prior to the incident. The accused came to the father of complainant and asked him to vacate the land but he refused to do so.

3. ' On the day of incident at about 6-00 a.m. Gaman Khan, the father of complainant after offering Fajr prayer was reciting (Darood Shareef) when three accused namely Wali Muhammad, Haji Ali, Abdul Ghafoor alongwith Pehlwan (now dead) entered the house of complainant, they were duly armed with guns and fired at Gaman Khan, who succumbed to injuries.

4. ' Police took up the investigation and submitted a challan.

5. ' At the trial prosecution examined P.W. Abdul Jalil, Medical Officer, Dr. Qazi Nabi Bux, Abdul Haji complainant, Abbas, Bashir Ahmed, Ghulam Hussain Investigating Officer and Tapedar Niaz Hussain. Ultimately the offence against the accused could not be proved and learned Trial Court acquitted them on 30-5-1998.

6. ' It is contended by Mr. Shaukat Hussain Zubedi learned counsel for applicant that the learned Trial Court has misread the evidence on record and the prosecution evidence was not properly assessed. He has further contended that the ocular evidence adduced by the prosecution was reliable which was corroborated by medical evidence and recovery of guns, used in the commission of offence. He has further asserted that the impugned judgment has caused miscarriage of justice and, therefore, the same may be set aside.

7. ' Mr. Ainuddin learned A.A.-G. Has supported the impugned judgment.

8. The eye-witnesses of this case are complainant Abdul Hadi, Ghulam Abbas and Sultan. They all are brothers inter se and have contradicted each other on material aspects. The ocular evidence is inconsistent to medical evidence. According to the eye-witnesses accused Ali and Pehlwan were armed with guns and both of them were attributed having fired shots at deceased Gaman Khan, which hit him and due to which he sucummbed to injuries. The medical evidence on the contrary reflects one fire shot injury. Accused Pehlwan has expired during pendency of case and the alleged injury which is sustained by the deceased was attributed to accused Pehlwan. So far medical evidence is concerned, the initial post-mortem was conducted by Medical Officer Taluka Hospital, Mirpur Mathelo and later on, the body was exhumed and medical board was constituted to conduct another post-mortem on the dead body of deceased Gaman.

9. ' Defence plea of the accused is that deceased Gaman was murdered by witnesses as he intended to sell his property to his second wife Mst. Sadhan and upon which the complainant and witnesses got annoyed. In support of his version Mst. Sadhan was examined under section 164, Cr.P.C., before S.D .M.. Mirpur Mathelo in which she stated that after this incident complainant Abdul Hadi took her to his relatives and she was confined. Later on, she was arrested by police in the murder case of Gaman and her 164, Cr.P.C., statement was recorded. According to defence the lady was important witness of the 'case but complainant party deliberately kept her away from prosecution case.

10. Prosecution has not examined any independent witness from neighbourhood in support of prosecution story.

11. The recovery of alleged guns is of no use for the prosecution as no empty was recovered by police from the scene of offence. The alleged guns were recovered from Abdul Ghafoor and Pehlwan.

12. Accused Pehlwan has expired whereas Abdul Ghafoor has not been attributed the injury. The alleged guns are on the licence of accused and were not sent to ballistic expert nor such report is on the record.

13. ' There are two post-mortem reports of deceased on record. One is by the Medical Officer and another by a Medical Board. The report of Medical Officer reveals that deceased had sustained two fire shot injuries whereas the report of Medical Board indicates that deceased sustained single injury on his person.

14. ' Besides, the aforesaid pieces of evidence, there is no other piece of evidence available on the record connecting the accused with the commission of offence.

15. This is the appeal against acquittal and the learned counsel has not been able to point out any illegality, irregularity or perversity in the impugned judgment which could demonstrate from the facts that it might have caused any injustice or miscarriage of justice. The reference can be made to a case of Yar Muhammad and 3 others v. The State, 1992 SCM R 96.

16. The upshot of the above discussion is that the impugned judgment is based on sound judicial principle of Administration of Criminal Justice and needs no interference. We had dismissed this Criminal Acquittal Appeal by a short order, dated 18-8-1999 and the aforesaid are the reasons for the same.