2007 PLP 413 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Riaz Ahmad, appellant, was tried by the learned Additional Sessions Judge, Nankana Sahib, in lieu of case F.I.R. No.7 registered at Police Station Faizabad on 23-10-1996 for offence under section 302, P.P.C. for having committed triple murder of Akbar Ali, Mst. Naheed and Mst. Rasulan Bibi. Vide judgment dated 13-2-2001, the learned trial Judge convicted the appellant for offence under section 302, P.P.C. on three counts and sentenced to death on each count plus payment of Rs.50,000, as compensation on each count, to the legal heirs of each deceased, in default in payment whereof to undergo imprisonment for six months.

2. Riaz Ahmad, convict-appellant, has challenged his above noted conviction and sentence through the instant appeal. Murder Reference No.257 of 2001 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment. The facts of the prosecution case, in brief, as per complaint Exh.PA recorded by Muhammad Sharif, Inspector/P.W. 14, at the instance of Ijaz Ahmad, complainant/ P.W. which based the registration of formal F.I.R. Exh.PA/1, are that the complainant/labourer, who was residing with his parents in Bhutto Colony, had six sisters and two brothers. His elder sister Mst. Nasreen Bibi was married with Riaz Ahmad about fifteen years ago. Two years prior to the occurrence, Riaz Ahmad took Naheed/younger sister of the complainant to his house, as Mst. Nasreen had to give birth to a child. Riaz Ahmad said that Naheed was his daughter and that he would manage her marriage. The complainant party had been going to the house of Riaz to bring back Naheed to their house but Riaz Ahmad did not allow her to go to her house. About one month ago, Naheed Bibi told the complainant party that Riaz Ahmad had contracted Nikah with her on gun-point, whereupon they asked Riaz Ahmad to keep his first wife Mst. Nasreen in his house and to hand over their younger daughter (Naheed) to them. On 22-1-1996, Riaz Ahmad went to the shop of Akbar Ali, paternal uncle of the complainant, situated at Jiya Moosa and asked him to accompany him to his house and took their both daughters Mst. Nasreen and Naheed to their house, whereupon on 23-1-1996 at about 9-00 a.m. the complainant along with his uncle Akbar Ali and his mother went to the house of Riaz and beseeched Riaz Ahmad to allow their younger daughter to accompany them and keep his wife Mst. Nasreen in his house but he asked to take both of them. The complainant party told Riaz Ahmad that two real sisters could not live together with one husband, whereupon he said either to take both along with them or to keep both with him. Upon that, at about 1-30 p.m. the complainant, his uncle and mother took both the sisters with them and left the house of Riaz. Riaz Ahmad took his .12 bore gun with him and followed the complainant party, whereupon Akbar Ali asked Riaz Ahmad to keep the gun in the house. Riaz replied that fie was going to bring his two daughters who had gone to Bhutto Colony. The complainant's uncle said that there was no enmity between them and that he was ready to bring his daughters back to his house and he should hand over his gun to him. But instead of handing over the gun to his uncle, Riaz receded a few paces and fired two shots one after the other hitting Akbar Ali on his cheek and nose. The third fire-shot by him hit Mst. Rasulan Bibi on her head, while fourth one hit Mst. Naheed on her chest and after taking two steps back, he fired the fifth shot which hit on her forehead and head. All the aforesaid three injured fell on the ground on different places. The hue and cry attracted Muhammad AnwarlP.W.2 and one Ahmad Ali. On catching sight of the P.Ws., Riaz Ahmad, while brandishing his gun, ran away towards Rehanwala. The complainant along with Nasreen Bibi took their mother to Rehanwala, where the doctor after giving first aid referred her to Mayo Hospital. Naheed Akhtar and Akbar Ali succumbed to the injuries at the spot. The motive behind the occurrence was that Riaz Ahmad wanted to keep Mst. Naheed Akhtar as his wife against the wishes of the complainant party.

4. On 23-1-1996 at about 2-10 p.m., when Muhammad Ashraf, Inspector/P.W.14, was present at Bus Stand Mandi Faizabad, the complainant Ijaz Ahmad/P.W.1 met him and recorded his statement/complaint Exh.PA, which was sent to the police station where formal F.I.R. Exh.PA/1 was registered by Muhammad Aslam, HC/P.W.7. Then the Inspector/Investigating Officer (I0) went to the place of occurrence; collected blood-stained earth from underneath the dead bodies of Akbar Ali and Mst. Naheed Akhtar and sealed the same into parcels vide memo. Exh. PB and PC. He prepared the injury statement of Naheed Akhtar Exh.PM and that of Akbar Ali Exh.PQ. He prepared inquest report of Naheed Akhtar Exh.PL and that of Akbar Ali Exh.PP. He then prepared the rough site-plan Exh.PV of the place of occurrence and sent the dead bodies for post-mortem examination. The last-worn clothes of Naheed Akhtar deceased were taken into possession vide memo. Exh.PC and that of Akbar Ali were taken into possession through memo. Exh.P.W. Riaz Ahmad appellant was arrested on 31-1-1996 and while in custody, on 7-2-1996, he led to the recovery of .12 bore gun P.5 which was taken into possession vide memo. Exh. PE. On 28-1-1996, on receipt of information that Mst. Rasulan Bibi had died in General Hospital, Muhammad Ashraf, A.S.-I./P. W.10, went there. He prepared her injury statement Exh.PH and inquest report Exh.PI and got her post-mortem examination. After her post-mortem examination, her last-worn clothes along with a sealed phial were taken into possession through memo. Exh. PD. After completion of investigation, the appellant was sent up to face trial.

5. To substantiate its version at the trial, the prosecution produced fifteen witnesses. Ocular account was furnished by Ijaz Ahmad/P.W.1 and Muhammad Anwar/P.W.2. In addition to that, Ijaz Ahmad also stated about the motive. Zulfiqar Ahmad/P.W.5 stated about the recovery of .12 bore gun at the instance of the appellant. Dr. Khalid Mahmood Akhtar/P.W.12 conducted post-mortem examination on the dead body of Mst. Naheed Akhtar on 24-1-1996 and while Observing two fire-arm injuries on her person one on her right forehead and the other on her lower right chest, opined that the death occurred due to shock, haemorrhage on account of Injuries Nos.1 and 2 which were caused by fire-arm weapon and were sufficient to cause death in ordinary course of nature. According to the doctor, the duration between the injuries and death was within a few minutes, while it was within twenty hours between death and. post-mortem examination. On the same date, the doctor conducted post-mortem examination on the dead body of Akbar Ali and finding one fire-arm wound on his left cheek, side of nose and upper left lip, opined that death occurred due to shock, haemorrhage and cardio respiratory failure due to the injury, caused by fire-arm, which was sufficient to cause death in the ordinary course of nature. The time which elapsed between injury and death was a few minutes, whereas it was twenty hours between death and post-mortem examination. On 29-1-1996, Dr. Khadim Hussain/P.W.13 conducted post-mortem examination on the dead body of Mst. Rasulan Bibi and found three stitched injuries on her person; one on the middle front of head; second on the right side of head and the third on the left side of head. Injury No.4 was fracture of skull on the middle and front part 3 c.m. x 3 c.m. Menigis were stitched. Haematoma on and in the brain was present. In the opinion of the doctor, cause of death was due to shock and haemorrhage which was due to head injury, caused by fire-arm, as mentioned in the medical certificate issued by the General Hospital, Lahore. The duration between the injury and death was one week, while between death and post-mortem examination it was twenty eight hours. Muhammad Sharif, Inspector/P.W.14, stated about the drafting and dispatching of the complaint Exh.PA and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication due to his marriage with Mst. Nasreen Bibi against the wishes of the complainant. The appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. However, he produced Mst. Nasreen Bibi, his wife/the sister of the complainant, as D. W.1, who stated that on the fateful day, she along with the three deceased was going to Lahore and when they had covered a distance of 2/3 Acres from their village, three culprits with muffled faces emerged there and opened fire at her mother, sister and Akbar, which, ultimately, culminated in their death. She further stated that at the time of occurrence, the appellant was at his home. She further stated that the appellant had neither contracted marriage with her sister Naheed nor was he having any illicit intimacy with her, rather he used to treat her as his daughter. She further stated that her brothers were not having good terms with her mother, sister and Akbar, the deceased persons; and that the appellant was implicated in this case due to his marriage with her.

7. Learned counsel for the appellant contends that both the P.Ws. were inimical towards the appellant; were chance witnesses and were not present at the time of occurrence; that their statements are belied by the medical evidence; that the motive as set in the F.I.R. could not be proved; that the conduct of the complainant is not above board; that according to him, he took Mst. Rasulan Bibi to the Rehanwala Hospital. She was referred to Mayo/General Hospital, Lahore, and thereafter he reported the matter to the police. This could not be possible, as the occurrence took place at 1-30 p.m., while the matter was reported to the police at 2-12 p.m., that the alleged weapon of offence is a single barrel gun but it has nowhere been mentioned in the F.I.R. that the accused/appellant had been re-loading it. Had the witnesses been present there, they would not have allowed the appellant to re-load the gun several time; that no empty was recovered from the spot; and that the prosecution case is full of doubts.

8. Conversely, the learned counsel for the complainant states that both the witnesses have plausibly explained their presence at the time of occurrence; that it was a daylight occurrence; that the appellant was named in the F.I.R. which was promptly lodged with specific role that he had caused brutal murder of three persons; that the prosecution has successfully proved the motive behind the occurrence; that the ocular account is fully supported by the medical evidence that all the deceased lost their lives due to fire-arm injuries; that the defence plea was of no substance, as the appellant himself did not appear to support it under section 340(2), Cr.P.C.; that it is not a case of substitution which is rare phenomenon. The learned counsel appearing on behalf of the State have adopted the line of arguments of the learned counsel for the complainant and have supported the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties and have also gone through the record of the case.

10. Mst. Nasreen, sister of Ijaz Ahmad/complainant, was firstly married with Rafiq Malik. Thereafter she eloped with the appellant and got married with him after obtaining divorce from Rafiq Malik. However, a case was registered against Riaz Ahmad appellant for her abduction. The complainant was not happy with her subsequent marriage and felt aggrieved. Mst. Naheed deceased who was younger sister of Mst. Nasreen was living with her sister in appellant's house for years. The complainant party also felt aggrieved over this and they wanted to bring Naheed back to their house. Mst. Rasulan Bibi deceased, who was mother of Naheed deceased and Mst. Nasreen, used to visit her daughters in the house of Riaz Ahmad. Both the P.Ws. have admitted that they did not like the staying of Naheed in the house of Riaz appellant and meeting of Mst. Rasulan Bibi with her daughters in the house of Riaz Ahmad. It is also in evidence that Akbar Ali deceased, who was uncle of complainant, used to visit Riaz Ahmad. Both witnesses Ijaz Ahmad and Muhammad Anwar were inimical towards the appellant and were also chance witnesses. Ijaz' Ahmad lived in Bhutto Colony which was at a distance of one kilometer from Rehanwala where the appellant lived, while Muhammad Anwar lived in Iqbal Town. The place of occurrence was situated at a distance of 3/4 Acres from the house of the deceased. According to F.I.R., Ijaz complainant, his deceased uncle Akbar Ali and his deceased mother Mst. Rasulan Bibi went to the house of Riaz Ahmad at about 9-00 a.m. on 23-1-1996, in order to get back their daughter Naheed. Riaz Ahmad made it clear to the P.Ws. that either both the sisters should be allowed to stay in his house or both should be taken by the complainant party to their house. The complainant, Akbar Ali-deceased and Mst. Rasulan Bibi-deceased along with Naheed deceased and Nasreen Bibi left the house of Riaz at about 1-30 p.m. They were followed by Riaz Ahmad, who was armed with a single barrel .12 bore gun. Despite asking of Akbar Ali repeatedly, neither Riaz Ahmad left his gun at this house nor did he gave it to Akbar Ali. After covering a distance of 3/4 Acres, Riaz. Ahmad receded a few paces and repeatedly fired at Akbar Ali, causing injuries on his cheek and nose. Then Riaz Ahmad caused another fire, which hit Mst. Rasulan Bibi on her head, while his fourth and fifth fires, which were caused from different distances, hit on the chest and forehead of Mst. Naheed. Ali the three fell on the ground at different places. The hue and cry attracted Muhammad Anwar/P.W.2 and one Ahmad Ali, who was not produced during trial, on the spot. The complainant along with Nasreen Bibi took Rasulan Bibi to Civil Hospital, Rehanwala. She was referred to Mayo/General Hospital, while Naheed and Akbar Ali died on the spot. According to P.W.2, in order to settle the matter with Riaz Ahmad, firstly, they left their house and went to the house of the complainant at Bhutto Colony and after receipt of information that the complainant and others had gone to the appellant's house, he and Akbar Ali left Bhutoo Colony and started proceeding towards the house of appellant and when they were at a distance of two Kanals, they saw the occurrence. The story put forward by the two P.Ws. is not worthy of credence for various reasons; firstly, there is no explanation as to why Riaz Ahmad continued walking with the deceased and the complainant for 3/4 Acres without causing any harm to them; secondly, if the P.Ws. had been present there, they would not have allowed the appellant to re-load his gun time and again. There is nothing in evidence that Ijaz Ahmad took any step to snatch the gun from the appellant in order to prevent him from re-loading it; thirdly, no empty was recovered from the spot. According to complainant, he and Nasreen took Mst. Rasulan to Civil Hospital, Rehanwala and the doctor after giving first aid referred her to Mayo Hospital. No record is available that Mst. Rasulan was firstly taken to Civil Hospital, Rehanwala. As per record, she died in General Hospital, Lahore, on 27-1-1996 at 9-30 p.m. and her dead body was recovered from there by Muhammad Ashraf, A.S.-I./P.W.10, on 28-1-1996, while her post-mortem examination was conducted by Dr. Khadim Hussain, Medical Officer, THQ Hospital, Nankana on 29-1-1996. No Medico-legal Report by the doctor who attended to Rasulan Bibi in General Hospital, Lahore, is available. In the circumstances, it was not possible for the complainant to report the matter at Police Station Mandi Faizabad at 2-10 p.m., while the occurrence took place at 1-30 p.m. It may also be mentioned here that according to P.W.2, the- police reached the spot at 1-30 or 2-00 p.m. He has not mentioned that the complainant accompanied the police.

11. The way the eye-witnesses have described the injuries in the F.I.R. and in their statements is not supported by the medical evidence. According to F.I.R., Riaz Ahmad appellant caused two fires one after the other at Akbar Ali, while Akbar Ali received only one fire which was caused almost at a point back range and card wad was recovered from the wound and blackening was present around it. Both the witnesses also made dishonest improvements during their statements and were duly confronted by their earlier statements. The witnesses have also contradicted each other on material points.

12. As far as motive is concerned, it is a double edged sword which cuts both ways. In the instant case, firstly Nasreen the sister of complainant, who was earlier married with Rafiq Malik, subsequently contracted marriage with the appellant and a case for her abduction was registered against the appellant. Mst. Naheed, who was younger sister of Mst. Nasreen Bibi, was living in the house of Riaz for last many years. Rasulan Bibi and Akbar Ali continued meeting with the appellant. Ijaz Ahmad-complainant admitted that Naheed was staying with Riaz as against the will and consent of the complainant. Similarly, Mst. Rasulan Bibi-deceased/mother of Ijaz used to see her daughters without his consent. He further admitted that he was not happy with his sister or mother due to their good terms with Riaz appellant. He also stated at page 51 of the Paper Book that his uncle Akbar deceased had good terms with the appellant as well as with the complainant. Similarly, P.W.2 admitted during cross-examination that Riaz was father of 4/5 daughters born out of his wedlock with Nasreen. He also admitted that Rafiq, who was earlier husband of Nasreen, was related to him. He further admitted that due to act of Nasreen and Riaz, he and his family members felt humiliated and had a grudge against the accused. In this background, implication of Ijaz Ahmad in the case due to existing hostility on the basis of suspicion would remain a possibility. It is also noteworthy that Rahmat Ali father of Ijaz Ahmad, who was alive, did not accompany Ijaz in order to get Naheed back.

13. The learned counsel appearing on behalf of the State has laid much stress on the statement of Dr. Khalid Mahmood Akhtar/P.W.12, according to whom uterus of Naheed-deceased was gravid about two months. According to the learned counsel, the appellant took life of Naheed, so that his shameful act may not be exposed. The argument of the learned counsel has no force as no direct evidence is available that Naheed had -any illicit liaison with the appellant; secondly, Nasreen, who had married with appellant after falling in love with him, would not allow Naheed to live in her house in case Naheed and the appellant had any illicit relationship. The complainant in his statement before the learned trial Court narrated that the accused said to them that Naheed was his daughter and he would manage to marry her. No exclusive evidence is available on record to link the pregnancy of the deceased with the appellant.

14. As far as recovery of gun is concerned, it does not enhance the prosecution case, as no empty was recovered from the spot; hence, it could not be said that the weapon was used during the occurrence. Further more, it was licensed gun of the appellant.

15. All what has been said above, we are of the opinion that it was an un-witnessed occurrence and the appellant was roped in this case due to existing enmity. After coming to the conclusion that the prosecution case was replete with doubts, there is no need to look into or assess the defence plea, which was denied.

16. As a necessary corollary to the above, this appeal is allowed and the judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case. The death sentence is Not confirmed. The Murder Reference is answered in the negative. S.M.B./R-50/L Appeal allowed.