1985 PLP 1314 (MLD)

This appeal by Muhammad Siddiq (28) and Naseer Ahmad (27) is directed against the judgment, dated 3-11-1982 by learned Additional Sessions Judge, Sheikhupura, who convicted them under section 302/34, P.P.C. Muhammad Siddiq was sentenced to death and a fine of Rs.5,00a or in default one year's R.I. Naseer Ahmad was sentenced to imprisonment for life and a fine of Rs.5,000 or in default one year's R.I. It was ordered that the entire fine, if recovered, be paid as compensation to the heirs of Shahbaz deceased. Shabbir Ahmad (60), Boota (26), Abdul Ghafoor (27), Arif Saleem (28) and Mst. Ghulam Fatima (45) were, however, acquitted by the same judgment. Muhammad Siddiq appellant having been sentenced to death, the proceedings are also before us 'for confirmation of sentence. This judgment will dispose of both these matters. .

2. The occurrence in this case took place in between the night of 29th and 30th April, 1979, in the Behak of Wali Muhammad P.W. in Chak. No. 14/R.B. about sixteen miles from Police Station Chuharkana, District Sheikhupura. Wali Muhammad complainant witnessed the occurrence but unfortunately could not identify the assailants of his son Shahbaz deceased. The F . I . R . Exh. P.C. was recorded at the Police Station by S.I. Muhammad Sharif P.W. 4 at 6.00 a.m. on 30-4-1979 on the statement of Wali Muhammad P.W.

6. It was stated in the F.I.R. by Wali Muhammad that his Dera was about three squares from Deh Manianwala where he had his Behak in Killa No. il of Square No.

77. He alongwith his son Shahbaz deceased was.sleeping near the cattle in the said field. He got up on a dog bark at about mid-night and saw few persons inflicting injuries on the person of Shahbaz, about 5/6 Karams from him. He raised alarm whereafter the assailants who were armed with Toka, Datar etc. ran away towards the village. He went near his son and found him dead. It was further stated by him that his son Muhammad Saleem was an eye-witness in a case pertaining to the murder of Muhammad Asghar Mochi on account of which some persons of the village nursed grudge against him. Many persons assembled at the spot some time after the occurrence. Leaving them there, he went to the Police Station and lodged the F.I.R. as stated above.

3. The Police after registration of the case undertook investigation. The dead body of Shahbaz (16!17) was sent for post-mortem examination which was conducted on 1-5-1979, at 8.00 a.m. by Dr. Khalid Yazdani P.W.

16. On external examination, the Medical Officer found seven incised wounds of various dimensions on the front of neck cutting the main blood vessels, trachea and oesophagus alongwith 6th cervical vertebra and 1st thorasic vertebra; on the right shoulder including right chest and on the right palm and fingers. On internal examination, all other organs excepting the neck described above were found healthy. All the injuries had been caused by sharp-edged weapon. The death was due to severe shock, haemorrhage, respiratory and cardiac failure as a result of injury No. 1 on the neck of the deceased which was sufficient in the ordinary course of nature to cause death. Probable time between injuries and death was within few minutes and the post-mortem was conducted after 30 to 35 hours of the death. Muhammad Siddiq and Naseer Ahmad accused were arrested on 24-6-1979. On 5-7-1979, Muhammad Siddiq accused got recovered blood-stained Toka P.5 which was taken in possession, vide memo. Exh.P.L. by A.S.-I. Muhammad Younas P.W. 15 in the presence of Altaf P.W.9 and Ghulam Rasool P.W. 10 (son of Mehr Din). Muhammad Siddique accused also got -recovered blood-stained Chaddar P.6 and blood-stained shirt P.7 on the same day which was taken in possession, vide memo. Exh. P.M. by A.S.-I. Muhammad Younas in presence of the same witnesses. Naseer accused on 5-7-1979, got recovered Khanjar P.8 which was taken in possession by A.S.-I. Muhammad Younas P.W. 15, vide memo. Exh. P.N. in presence of Mushtaq P.W.13 and Ghulam, Rasool son of Qaim Din given up P.W. Irshad son of Ismail was also an accused person in this case. He was made to join investigation and formally arrested on 20--6-1979. He was produced before a Magistrate for judicial remand on 21-6-1979. Irshad was sent to judicial lock-up on that very day. On 22-6-1979, Irshad accused submitted an application through Superintendent, District Jail, Sheikhupura and offered to become an approver in the case. This petition was allowed. Irshad was tendered pardon and was examined as a prosecution witness during the trial. The accused were challaned after completion of the investigation.

4. The prosecution during the trial examined 19 witnesses in all. The approver Irshad P.W. 3 was examined as the eye-witness in this case. Wali Muhammad P.W. 6 had witnessed the occurrence but was not able to identify the assailants of his son. He got the present case registered at Police Station Chuharkana. The recoveries of Toka P.5 and blood-stained clothes P.6 and P.7 were witnessed by Altaf P.W. 9 and Ghulam Rasool P.W.10. The recovery of Khanjar P.8 was witnessed by Mushtaq P.W.

13. The articles P.5 to P. 8 were found stained with human blood, vide report of the Chemical Examiner Exh, P.R/1 and that of Serologist Exh. P . S /

1. Walayat P . W . 7 was a Wajtakkar witness and had seen the accused before and after the occurrence at place near the scene of occurrence. The evidence on motive was furnished by Muhammad Saleem P.W. 14, a brother of Shahbaz deceased. The medical evidence was furnished by Dr. Khalid Yazdani P.W. 16 as given in detail above. Mr. Javaid Ahmad Mufti P.W. 18 recorded the statement of Irshad approver after he had been tendered pardon by the District Magistrate. The investigation was conducted by A.S.-I. Muhammad Younas. The evidence of the rest of the witnesses was of formal nature. The accused when examined under section 342, Cr.P.C., denied the charge and pleaded innocence and attributed this case on account of the influence of Rai Ahmad Saeed, their opponent. They, however, did not produce any evidence in defence. The learned Additional Session, judge placed reliance on the evidence of the approver, motive, recoveries of Toka P.5 and Khanjar P.8 and convicted the accused as stated above. He did not place reliance on the evidence of recovery of Chaddar P. 6 and shirt P.7.

5. We have gone through the record of this case and have heard the learned counsel for the appellants as well as the learned counsel appearing on behalf of the State. There is no eye-witness in this case. Wali Muhammad P.W. 6 who had seen the occurrence was not able to identify the assailants of his son Shahbaz deceased. The prosecution case mainly rests on the evidence of the approver Irshad P . W .

3. We have carefully gone through his evidence. It was stated by Irshad P.W. that two months before the occurrence his pigeon had been lost and as such, he had gone to the house of one Idrees to inquire about the same. He was informed by the inmates of the house that Idrees had gone to the Baithak of Naseer accused. He accordingly went there but did not find Idrees. He was about to return to his house when Naseer accused invited him to sit. At that time, all the accused were present there. It was about 9-00 p.m. They remained chatting with each other being friends and party-men. After some time, Naseer accused asked Irshad approver, whether Saleem, a brother of Shahbaz deceased, had abused him to which he replied in affirmative. At this, Naseer accused said that Saleem was a witness against them in a murder case and had also given beating to his mother Mst. Ghulam Fatima accused. Bashir acquitted accused said that they would finish him. He was supported by Naseer accused. Irshad approver further stated that he remained present at the Baithak of Naseer accused till 12-00 p.m. (mid-night) when the accused got up. At that time, Bashir accused had a gun Niazi accused had a carbine, Siddiq accused had a Toka and Mst. Fatima accused brought a Khanjar for Naseer accused whereafter all the five male accused including Irshad approver came out of the house. Irshad approver himself was empty-handed. They went to the Baithak of the deceased at about 1.00 a.m. Naseer accused shut the mouth of Shahbaz deceased with his hand. Asif, Saleem and Niazi accused caught the deceased from his legs. Bashir and Shabbir accused caught the deceased by his arms. whereafter Siddiq and Naseer accused gave blows to the deceased with Toka and Khanjar, respectively. A perusal of his statement would indicate that this was an exculpatory statement. The approver did not ascribe any role to himself in the occurrence. As such, we are of the view that he was introduced as an accused person by the Police to install him as an approver to support the prosecution case which had no eye-witness. Irshad approver did not have any direct motive in the instant case to join in the murder of Saleem P.W. or his brother Shahbaz deceased. He was, in no way, related or connected with the other accused in this case. It is in evidence of A.S.-I. Muhammad Younas P.W. 15 that Irshad approver joined investigation on 3-6-1979 and used to join investigation whenever summoned by him. He formally arrested Irshad approver on 20-6-1979. It would, therefore, be clear that Irshad approver who had no concern with the present occurrence was associated with investigation for about 17 days and was arrested on 20-6-1979. The application was moved by him for becoming an approver in this case on 23-6-1979 i.e. only after two days of his formal arrest. It is in evidence that A.S.-I. Muhammad Younas was present in Court when Irshad was produced for recording of his statement under section 164, Cr.P.C. Thus it is clear that the police manoeuvred to introduce Irshad as an approver in this case to furnish ocular account in support of the prosecution story. Irshad approver in his statement under section 164, Cr.P.C., Exh. P.B. made a general statement that Siddiq gave Toka blow and Naseer gave Khanjar blow to the deceased, but during the trial he attributed specific injuries to these two accused on the person of Shahbaz deceased. According to this witness, the accused gave two blows on the neck of Shahbaz deceased but a perusal of the medical evidence would show that there was only one injury on the neck of the deceased. Irshad approver during the trial stated that he had gone to the house of Naseer accused at about 9-00 p.m. to meet one Idrees in search of his pigeon. Firstly, Idrees has not been examined during trial of this case; secondly, there is no evidence that Irshad approver had any pigeon and that the same was lost; and thirdly, he stated to have gone to the house of Idrees late in the evening and had reached the house of Naseer at about 9-00 p.m. which was an odd hour to search or to inquire about the pigeon. We, therefore, find that Irshad P.W. was not a reliable witness and had made a false exculpatory statement to support the prosecution case.

6. The trial Court disbelieved the recovery of Chaddar P.6 and shirt P.7 at the instance of Siddiq accused but relied on the evidence of recovery of Toka P.5 and Khanjar P.8. Altaf Hussain P.W. 9 did not support the prosecution case regarding recovery of clothes and was declared hostile. Ghulam Rasool P . W . 10 admitted that the Toka was recovered from a public street which was a thoroughfare. He admitted that Lambardar and Chaukidar were present at the time of recovery but they were not cited as witnesses. He stated that the recovery' memos had been prepared and signed in the Dera. This means that the recoveries memos were not prepared at the place of recovery. The recovery of Toka having been made, from an open place accessible to, others cannot be relied upon. So far as the recovery of Khanjar P. 81 is concerned, it was not noted to be stained with blood in the recovery memo. Exh. P.N Mushtaq P.W. 13 also did not state during the trial that the dagger P. 8 was stained with blood. As such, the recoveries of Toka and dagger do not connect the two appellants whit the present crime. The evidence of Walayat P.W. 7 who was a Wajtakkar witness can also not be relied upon. He is related to the deceased and the story put forth by him is improbable. There was no occasion for him or his companions to search their cattle at that hour of the night. The Police did not arrange any test identification parade with respect to the accused to ascertain as to whether any one of them was seen by Wali Muhammad P.W. at the spot or not.

7. An overall assessment of the evidence clearly indicates that approver Irshad P.W. 3, on his own showing, was an accomplice. He made exculpatory statement during the trial. The story narrated by him was improbable and his evidence does not find support from any independent and unimpeachable evidence, which was necessary in the) facts and circumstances of the case.

8. In view of the above, we are of the view that the prosecution has failed to prove its case against the appellants. This appeal is accordingly accepted, The conviction and sentence of both the appellants under section 302/34 P.P.C. is set aside. The sentence of death of Muhammad Siddiq appellant is not confirmed. Muhammad Siddiq and Naseer Ahmad appellants are acquitted and will be released from prison, if not required in any other case. Announced. H.A.K. Appeal accepted.