THE STATE vs ALLAH WADAYA and others

' TANVIR BASHIR ANSARI, J.--- This is an appeal under section 417, Cr.P.C. Filed by the State against the order of acquittal of respondents Nos.1 to 3 passed by the learned Sessions Judge, Rahim Yar Khan dated 15-10-1986. Muhammad Hussain, respondent No,2 has since died, so the appeal to his extent has abated.

2. F.I.R. No,101 of 1985 Exh.P.J was registered under sections 302/452/34, P.P.C. On 18-6-1985 upon the complain of Abdul Sattar son of Budha P.W.S. ' The prosecution case in brief is that on the night of 18-6-1985, the complainant, his brother Saleh Muhammad along with Qabil son of Yar Muhammad and Muhammad Sharif son of Dodhal were lying on their cots near the cot of Allah Diwaya deceased brother of the complainant and were busy talking in the courtyard of the house where all the brothers resided together. There was an electric light in the courtyard. At 1-30 a.m. Allah Wadhaya son of Mehwa armed with a single barrel gun, Sardar son of Imam-ud-Din armed with a single barrel gun and Muhammad Hussain alias Mohana carrying a .12 bore pistol, all caste Gopang, entered the house. Accused Allah Wadhaya raised a Lalkara that Allah Diwaya shall not be spared. He then approached foot side of the cot of Allah Diwaya and fired directly at him. Sardar and Muhammad Hussain started indiscriminate firing at the deceased. The witnesses went aside out of fear and started raising alarm, upon which, Ghulam Hussain, Abdul Hameed, Muhammad Hanif and Abdul Rehman were attracted to the spot.

Seeing them, the accused scaled over the wall of the Haveli and fled away. Allah Diwaya was seriously injured and was bleeding from his legs and chest, he was taken to the Civil Hospital, Sadiqabad where he succumbed to his injuries.

' The motive for the occurrence was that Allah Diwaya deceased who was a local councillor was instrumental in getting registered as case. F.I.R. No,99 of 1985 under sections 307/148/149, P . P . C .

Against Anwar etc. Persons of the Gopang caste. This had enraged Darya Khan alias Fayyaz Khan and Fazal Elahi alias Allah Bakhsh who also belonged to Gopang caste. On the evening immediately before the occurrence, Allah Diwaya, Shams Din, Karim Bakhsh, Muhammad Salim, and Gul Gohar were accosted by the said Darya Khan and Fazal Elahi who threatened Allah Diwaya to face the consequences for prosecuting the case against Anwar etc. The offence, according to the prosectition, was committed by the accused of this case at the instance of the said Darya Khan and Fazal Elahi.

3. Muhammad Basharat, Inspector/ S.H.O. P.W.12 recorded the F.I.R. On the statement of Abdul Sattar complainant P.W.S. He then proceeded to the 'hospital where he prepared injury statement Exh.P.L and inquest report Exh.P.M and deputed Muhammad Boota, F.C. P.W.1 to get the autopsy done on the dead body. He recorded the statements of the P.Ws. He then went to the spot wherefrom he secured blood-stained earth from underneath the cot of the deceased and made into a sealed parcel. He took into possession blood-stained cot P.3 of the deceased and four pellets P.4/1-4 and wad P.5 which were lying near the above said cot and took the same into possession.

He took into possession blood-stained `gindi' P.6 and bed sheet P.7 vide memo. Exh.P.D. Empty cartridges P.8 to P.10 which were lying at the spot were secured vide memo. Exh.P.E. On the same day, Muhammad Boota P.W.1 produced last worn clothes of the deceased i.e vest P.1, chaddar P.2 which were taken into possession vide memo. Exh.P.A. He handed over the sealed parcels to the Duty Officer for safe custody. On 25-6-1985, he arrested all the accused. On 26-6-1985, Allah Wadhaya accused while in police custody led to the recovery of .12 bore gun P.12 from his residential Kotha which he made into sealed parcel and took into possession vide memo. Exh.P.F.

On the same day, Muhammad Hussain alias Mohana accused while in police custody led to the recovery of .12 bore pistol of P.13 and two live cartridges P.14 and P.15 from his residential house. The same was sealed into parcel vide memo. Exh.P.G. Sardar accused when he was in custody, got recovered .12 bore gun P.16 from his residential Kotha which was taken into possession after making the same into sealed parcel vide memo. Exh.P.M. He handed over all the above said sealed parcels to the Duty Officer for safe custody and onward transmission to the office of Chemical Examiner and Forensic Science. Laboratory, Lahore. He got prepared site plan Exhs .P.N and PN/1 from Tariq Mahmood, Tracer P.W.9 and recorded the statements of the P.Ws. After completing the necessary formalities, the accused were challaned.

4. To prove its case, the prosecution produced as many as 12 witnesses.

5. The eye-witness account was rendered by Abdul Sattar P.W.5, Saleh Muhammad P.W.6 and.

Muhammad Sharif P.W.7. All these P.Ws. By and large narrated the similar version both regarding the occurrence as well as motive. In addition to the case set up in the F.I.R., all the three P.Ws. Made addition to the motive by stating that the three accused along with the two others used to frequent a tea stall in their Basti where they used to tease the womenfolk of the Basti. They stated that Allah Diwaya deceased and Muhammad Salim took exception to this conduct. Muhammad Salim also lodged a report at the police station about this incident.

6. Dr. Abdul Wahab P.W.8 conducted the autopsy on the dead body of Allah Diwaya on 18-6-1985 at 7-00 a.m. And found seven injuries on his person. In .His opinion, the death took place due to shock and haemorrhage. All the injuries collectively and individually were sufficient to cause death in the ordinary course of nature. Injuries were ante-mortem. The probable time between injuries and death was 1 to 3 hours and between death and post-mortem 3 to 6 hours. Exh.P.K is the correct carbon copy of the autopsy which is in his writing and bears his signatures. Exh.P.L is the injury statement and Exh.P.M is the inquest report which bears his signatures.

7. The evidence of the remaining P.Ws. Was, by and large, of a formal nature.

8. The accused/respondents were examined under section 342, Cr.P.C. They denied the allegations against them and also refuted the recoveries of weapons of offence at their instance. All the accused stated that they have been involved due to enmity and mere suspicion. All of them declined to appear in their own defence and to make statement on oath. None of them produced any evidence in defence.

9. The learned trial Judge disbelieving the prosecution evidence, acquitted all the accused/respondents as indicated above.

10. According to the learned A.A.-G, the learned trial Court had erred in not believing the P.Ws.

Produced by the prosecution who were natural witnesses of the occurrence. It was contended that the ocular account was fully corroborated by the medical and circumstantial evidence. Referring to the statements of Abdul Sattar P.W.5 and Saleh Muhammad P.W.6, it was urged that both the witnesses were real brothers of the deceased and lived together along with the deceased in the house at Basti Kotha Thilli of Mouza Rehmoo. They had recounted the occurrence in detail and fully supported each other. Muhammad Sharif P.W.7 was the 3rd eyewitness who was present at the spot and corroborated the other P.Ws. The learned A.A.-G submitted that all the eye-witnesses asserted having seen accused Allah Wadhaya, Sardar and Muhammad Hussain (now deceased) to have fired at and hit Allah Diwaya deceased. According to the learned A.A.-G, these witnesses also deposed about the motive of the occurrence. As per their statements, the accused who were closely related to each other and belonged to Gopang caste were aggrieved of the filing of a case wherein Muhammad Hussain and six others were nominated for making murderous assault on Bashir Ahmad, a cousin of deceased Allah Diwaya. The case was being perused by the deceased. It was also averred that eight days before the occurrence, there was exchange of abuses between the respondents and the deceased and one Muhammad Saleem. He further relied upon the deposition of P.W.8 who had conducted post-mortem examination on the dead body. It was urged that the medical evidence was corroborated by the ocular account on the record.

11. Support for the prosecution case was also sought to be drawn from the circumstantial evidence such as recoveries of weapons of offence at the pointation of the accused and the recovery of pellets and 3 empty cartridges from the spot.

12. On the other hand, ,the learned counsel for the respondents supported the judgment of the acquittal.

13. We have heard the arguments of the learned counsel for the parties and examined the record.

14. As is evident from the record, the occurrence took place during the night at about 1-30 a.m. In the month of Ramazan in the house of the deceased. Abdul Sattar P.W.5 and Saleh Muhammad P.W.6 have claimed that they were residing in the same house along with the deceased.

Muhammad Sharif P.W.7, however, was not a resident of the said house. In fact, he resided towards the west of the house of the deceased along with the given up eye-witness, Qabil. On account of the fact that the occurrence took place during the month of Ramazan, the presence of the eye- witnesses particularly Muhammad Sharif and the aforesaid Qabil at the place of occurrence was highly improbable particularly when the occurrence took place at 1-30 a.m. Besides, despite the alleged indiscriminate firing by the accused, none of the eye-witnesses received any injury. This would also militate against the possibility of the presence of the eye-witnesses at the spot. It is also not explained as to why the women-folk who were also inmates were not cited as witnesses. The evidence on the record further reveals that the house of Muhammad Sharif P.W. And Qabil was separated from the house of the deceased by a boundary wall. Both of them were married and had young wives and children. Their own house was not particularly guarded against thefts etc. And there had been such occurrences in the near past. For these persons, to be normally sleeping in the courtyard of the deceased leaving their own wives and children alone and that too as a practice, does appear to be unnatural and not in accordance with the normal human behaviour.

Further the time of occurrence and the lacerated wound with blackened margins in front of the right knee of the deceased as given by P.W.8 in his report indicate that the deceased was murdered while he was asleep. The story that the P.Ws. And the deceased were busy talking in doubtful even in view of the medical evidence. The version of the P.Ws. Regarding the raising of Lalkara is also improbable as there was no reason fot the accused to have raised the Lalkara in the dead of night. The learned trial Court was right in disbelieving the ocular account.

15. The evidence of recoveries is also not confidence-inspiring. Empty cartridges P.8 to P.10 were secured by the Investigating Officer P.W.12 vide Exh.P.E. He made it over to the Duty Officer on 19-6- 1985. The accused were arrested on 25-6-1985 and according to the prosecution case, Allah Widaya led to the recovery of a .12 bore gun from his Kotha on 26-6-1985. On the same day, recovery of a .12 bore pistol was made at the pointation of Muhammad Hussain accused. Similarly, a .12 bore gun was recovered from Sardar accused upon his pointation from his residential Kotha.

Admittedly, according to the report of the Forensic Science Laboratory, the crime empties did not match with the weapon recovered from Sardar accused. According to the evidence, the crime empties were handed over to Muhammad Afzal P.W.2 on 25-6-1985. However, it was not before 27- 6-1985 vide Exh.P.R that such parcel containing the empties was received the FSL. P.W.2 further states that he delivered the crime empties to FSL the day next after the parcel Exh.P.E was handed over to him. Fire-arms covered on 26-6-1985 were also received at the FSL on 27-6-1985. The possibility cannot be ruled out that the weapons of offence and the crime empties remained together in the possession of the Investigating Agency before they were sent for examination. The evidentiary value of the report of their matching is thus, not free from doubt.

16. As far as the medical evidence is concerned, suffice it to say that the medical evidence itself without further corroboration cannot connect the accused with the crime. Reference may be made to the cases of Saif Ullah Khan and 5 others v The State 1986 PCr.LJ 2794 and Masood Ahmad and 3 others v. The State 1995 SCM R 127 in support of the proposition that the medical evidence by itself shall not establish the identity of the accused.

17. As regards the motive as alleged by the prosecution, it is noticed that there is sufficient material on the record to suggest enmity between the parties. This enmity as a motive for the instant occurrence would cut both ways equally. It could be the cause for the commission of the offence as it could well be the reason for false implication of the accused. For the various factors enumerated above, the latter possibility seems to be the more likely of the two.

18. As a result of the above discussion, we do not find the judgment of the learned trial Court to be suffering from any perversity or illegality warranting an interference by this Court. Accordingly, the appeal fails and is hereby dismissed.