2008 PLP 407 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.199 of 2002 filed by Muhammad Akram, who faced trial in case F.I.R. No.140, registered at Police Station Komonke, District Gujranwala, on 2-6-2000, for offences .under sections 302/452, P.P.C., before learned Additional Sessions Judge, Gujranwala, who after conclusion of trial, vide his judgment, dated 22-1-2002 convicted the appellant under section 302(b), P.P.C. and sentenced him to Death with compensation of Rs.40,000 or in default six months' S.I.

2. Murder Reference No.401 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in F.I.R. are that Muhammad Suleman (complainant) was residing along with his son Muhammad Ali and Muhammad Akram in a common house. His elder son Niamat Ali was residing separately. On the fateful night, the complainant, his younger son Muhammad Akram along with his wife Mst. Hakiman Bibi were sleeping in the Haveli, whereas Muhammad Ali and his wife Mst. Ruqqia Bibi along with children were sleeping in the courtyard of the house at a distance of 20/25 feet from the complainant. It is also mentioned in the F.I.R. that there was no wall in between Haveli and the house. At about 2-30 a.m. grandson of the complainant Asif aged about 9 years and grand-daughter aged about 5 years while raising hue and cry told the complainant that Muhammad Ali and Mst. Ruqqia Bibi were injured by some unknown persons. The complainant party rushed to the spot of Muhammad Ali and Mst. Ruqqia Bibi and saw that Muhammad Ali was inflicting injuries with some sharp-edged weapon on his neck, chest and upper part of his left arm,' while Mst. Ruqqia Bibi received injuries on her forehead, head and right ear. Both had died at the spot.

4. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Akram S.-I./P.W.12, who conducted thorough investigation, arrested the accused and after effecting recovery of weapons used during the occurrence, sent him to face trial.

5. At the trial, the prosecution in order to prove its case produced 12 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.O. Exh.P.P. and Exh.P.Q. and that of Serologist Exh.P.R.. and Exh.P.S. closed its, case. The accused in his statement recorded under section 342, Cr.P.C., pleaded his innocence and false implication. He appeared in his defence under section 340(2), Cr.P.C. as D.W.1. He also produced Mst. Hakiman Bibi as D.W.2. Muhammad Suleman, appeared as C.W.1. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.

6. The learned counsel for the appellant after having read the entire prosecution evidence, statements of the appellant recorded under sections 342 and 340(2), Cr.P.C. and other relevant material available on record in support of this appeal has argued that it was an un-Witnessed occurrence and the assailants could not be identified by the P.Ws.; that Muhammad Asif gave tutored statement before the learned trial Court and his statement was recorded after 14 days of the occurrence and was not worthy of reliance; that the evidence of extra-judicial confession was not supported by the statement of witness Muhammad Afzal, who appeared as witness but did not say a word about extra-judicial confession; that the direct evidence was not supported by the medical evidence; and that the recovery evidence was worthy of no credence.

7. On the other hand, the learned Additional Prosecutor General submits that Muhammad Asif real son of the deceased appeared as witness; implicated the appellant and stood the test of cross-examination; that his statement was supported by the medical evidence; and that these two factors were enough to warrant conviction; that as far as Suleman is concerned he tried to save life of his son. He supports the judgment passed by the learned trial Court.

8. We have heard the learned counsel for the parties at length and gone through the entire. evidence minutely.

9. The occurrence took place during night in the house of Muhammad Suleman, father of the deceased, who was also first informant, appeared before the learned trial Court as CW-1. According to F.I.R:, Muhammad Suleman had three sons all of whom were married. Niamat Ali elder son lived separately, while he, Muhammad Ali-deceased and Muhammad Akram-appellant lived in the same house. On the fateful night the complainant and his younger son Muhammad Akram and Muhammad Akram's wife Mst. Hakiman Bibi were sleeping in the adjacent Haveli. There was no wall between the house and Haveli. Muhammad Ali and his wife Ruqqia Bibi along with their children were sleeping in the compound at a distance of 20/25 feet. At about 2-30 a.m. Muhammad Asif (aged about 9 years) and Iqra (aged about 5 years) son and daughter of the deceased, raised hue and cry and informed the complainant that unknown assailants had caused injuries to Muhammad Ali and Ruqqia Bibi. Muhammad Akram-appellant and his wife Hakiman Bibi, also woke up. They rushed to the spot and saw that Muhammad Ali had received injuries caused by sharp-edged weapon on his left ear, neck, chest and bicep, while Ruqqia Bibi had received injuries on her forehead, head and right ear and both had died. After leaving Ghulam Qadir and Niamat Ali near the dead bodies Muhammad Suleman reported the matter to Muhammad Akram/S.-I., at 5-30 a.m. while the latter was present at Pull Rajbah Harpoke. No one was named as accused in the F.I.R. nor was any suspicion laid on any person. Later on during investigation on the basis of incriminating evidence Muhammad Akram, real brother of the deceased, was sent up to face trial as accused.

10. In order to prove its case, the prosecution produced Muhammad Asif son of the deceased before the learned trial Court as eye-witness. He was a child witness aged about 10/11 years at the time of recording of his statement, so before recording his statement the learned trial Court put certain question to ascertain his fitness as witness. It was Muhammad Asif, as mentioned in the F.I.R., on his and his sister's cries the complainant and appellant along with his wife rushed to the spot. At that time Muhammad Asif did not disclose to his grandfather that it was Muhammad Akram-appellant, who had committed the offence. He also did not disclose this fact after arrival of the police at the spot. According to him, he was frightened and for that reason he kept quiet. Perusal of the record reveals that the complainant and Muhammad Akram-appellant was suspecting brothers of Ruqqia Bibi to be the culprits, while brothers of Ruqqia Bibi (maternal uncles of Muhammad Asif) were showing suspicion against the appellant. The statement of Muhammad Asif was recorded by the Investigating Officer on 16-6-2000 i.e. after 14 days of the occurrence. It is in evidence that after the occurrence children of the deceased were taken by Akbar (brother of Ruqqia Bibi) and they started living with their maternal uncle. The recording of statement of Muhammad Asif after full 14 days cast doubt on its credibility, as there was no justification for Muhammad Asif to remain quiet in the house of his maternal uncle for such a long time.

11. Before believing a child witness it is necessary to ascertain that child witness was not giving a tutored statement, so the statement of Muhammad Asif is to be appreciated as a whole and not on the basis of his narration about the main incident alone. After narrating main incident that on the fateful night in the light of an electric bulb' he saw his uncle Muhammad Akram inflicting injuries with Kassi and Draat on the front of neck of his father and thereafter his mother woke up and identified the accused, so he started causing injuries on her head, neck and other parts of the body. He further stated that his mother and father fell down and he remained lying till morning, while he getting frightened kept on sleeping on cot, in the morning his maternal uncle took him to his house. Thereafter he started faulting, as is evident from the portion of his statement that "I told this occurrence to my maternal uncle after arrest of the accused 3/4 days of the occurrence. Again said, 13/14 days after the arrest of the accused. Then my maternal uncle took me to the P.S. before the police, where I told the whole story." It may be noted here that the appellant was arrested on 30-6-2000, so his statement could have been recorded at the earliest either on 3/4th July or 13/14th July. On the contrary, as noted above, his statement was recorded on 16-6-2000. During cross-examination he stated that he did not tell the occurrence to any body on the next morning after the night of occurrence. No reason was advanced as to why he did not narrate the occurrence to his maternal uncle, who had taken him to his home. In examination-in-chief he stated that he kept on sleeping on the cot till morning and thereafter his maternal uncle took him to his house. But in cross-examination he stated that he started crying on that morning and his maternal uncle took him to his house after a short while after arrest of Akram accused. The two statements can never be reconciled, as what to talk about arrest, there was no suspicion against Muhammad Akram till 14-6-2000 when he allegedly made confession before Nawazish P.W.9. He further stated in cross-examination that the accused washed Kassi and Draat after the commission of offence. He did not wash his clothes at that time. The accused was wearing same clothes when he returned to the house of his father early morning. This statement clearly indicates that after the end of tutored statement about the incident the witness was unable to tell any detail and his answers were based on guess work alone. It is totally unbelievable that the assailants after washing of weapons would keep on wearing bloodstained clothes till morning. He further stated that his younger sister Iqra also sustained injury at the hands of the accused, which is no body's case. It is pertinent to note that on 15-6-2000, one day prior to recording of statement of Muhammad Asif, the Investigating Officer recorded the statement of Nawazish P.W.9 about the confession of the appellant. After recording statement of Nawazish, on the next day statement of Muhammad Asif was recorded as an eye-witness. In these circumstances, possibility that Muhammad Asif was assured by his maternal uncles that his parents were murdered by the appellant and he was persuaded to become a witness cannot be ruled out. Muhammad Asif failed to stand the test of cross-examination. His statement is not corroborated by any other independent reliable incriminating evidence, hence is not worthy of any credence. Reliance is placed on the case of State v. Farman Hussain and others (PLD 1995 SC 1), wherein it was observed by the Hon'ble Supreme Court that evidence of a child witness is a delicate matter, and normally it is not safe to rely upon it unless corroborated. It is a rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved. As a rule the evidence of a child witness is not to be relied upon unless corroborated.

12. Nawazish brother of Mst. Ruqqia Bibi-deceased appeared as P.W.9 and stated that on 14-6-2000 at about 8-00 p.m. while he along with Muhammad Afzal and Muhammad Jamil was present in his house, Muhammad Akram went there and confessed the murder of Muhammad Ali and Ruqqia Bibi. He also stated before the P. Ws. that motive behind the occurrence was that Muhammad Ali had refused to give him the share of agricultural land and due to that grudge he committed murder. Muhammad Jamil, who was brother-in-law (Behnoi) of Nawazish, was never produced before the learned trial Court. Muhammad Afzal, who was allegedly present at the time of making confession, appeared before the learned trial Court as P. W.10. He did not state a 'word about the confession. If any confession would have been made then Muhammad Afzal must have stated so before the learned trial Court. On 14-6-2000 no incriminating evidence was available against Muhammad Akram so there was no need for him to make confession before P.W.9. As far as seeking pardon of the appellant was concerned, his father was alive he could very easily approach his father for seeking pardon. This piece of evidence is not worthy of any credence.

13. No motive was mentioned in the F.I.R. However, Nawazish P.W. tried to introduce motive through the mouth of Muhammad Akram appellant himself but that did not fit, as father of Muhammad Ali deceased and Muhammad Akram-appellant was alive, there' was no occasion for fighting over share of inheritance.

14. As far as the recoveries are concerned, it is not believable that the accused would keep weapon bloodstained intact till 28 days after the occurrence. No independent witness of the locality was produced to prove the recoveries. Muhammad Afzal, who was brother of Ruqqia Bibi-deceased and was hostile towards the appellant, was produced before the learned trial Court. The Investigating Officer admitted that the blade of recovered Kassi had a bend. Muhammad Afzal, recovery witness, admitted that the recovered Draat was curved, while according to Doctor all the injuries were caused by a heavy sharp edged weapon having a straight blade. Muhammad Afzal, however, admitted that Kassi and Draat were recovered from the same room, which was in use of the appellant and his father. Diagram on the back of Exh. PO (report of Chemical Examiner) also shows that both the weapons had a behind. In the above noted circumstances; no reliance can be placed on the evidence of recovery.

15. Dr. Syed Zafar Abbas Bukhari/P.W.4 conducted the post-mortem examination on the dead body of Muhammad Ali. During cross-examination he explained that injuries were caused by sharp-edged weapon like Kassi, Hatchet, Axe etc. which was straight in nature. He further stated that placement of weapon was straight and forceful. According to his opinion, all the injuries had been inflicted by the cutting edge of the sharp edged weapon and not by corner or reverse side of the weapon. He did not find any irregularity in surface of cutting. The medical evidence supports the prosecution case that the deceased lost their lives due to injuries, which were caused by sharp edged weapon but the dimension and nature of the injuries do not tally exactly with the alleged recovered weapons.

16. First informant, who is father of Muhammad Ali-deceased and appellant, appeared before the learned trial Court as C.W.1. He was more than 85 years of age. His statement was according to story given in the F.I.R. It was not suggested to him that he was not sleeping in the house at a distance of 20/25 feet from the deceased. There is no evidence of existence of any grudge between the deceased and the appellant prior to the occurrence. The assailant, whosoever, acted in a very ruthless manner and caused number of injures. The number of injuries and nature of weapon used show that the assailant had deep-rooted enmity. It does not appeal to reason that the appellant would kill his own brother while his wife and father were sleeping nearby.

17. The upshot of the whole discussion is that in our opinion the prosecution case is not free from doubt. After having come to the conclusion there is no need to look into the defence plea and the evidence led on behalf of the defence. Consequently, while extending benefit of doubt in favour of the appellant, we allow this appeal, set aside the impugned judgment and acquit the appellant of all the charges. He would be released from Jail forthwith, if not required in any other case.

18. Murder Reference is answered in the negative and .the sentence of death is not confirmed. N.H.Q./M-96/L Appeal allowed.