2011 P Cr (PLP)

RAUF AHMAD SHEIKH, J.

Rustam Khan appellant has challenged the judgment dated 31-5-2008 passed by Raja Ghazanfar Ali Khan, learned A.SJ, Jhelum, in case F.I.R. No.201 dated 26-9-2006 under sections 302/337-F(i), P.P.C. Police Station Pind Dadan Khan, whereby he was convicted under section 302(b), P.P.C. and sentenced to death for causing Qatl-e-amd of complainant's father Muhammad Bakhsh and was further convicted under section 337-F(i), P.P.C. for causing ghayr-jaifah damiyah to Muhammad Tanvir P.W. and was sentenced to one year's R.I. and payment of Rs. 15,000 as Daman and in case of non-payment to undergo S.I. for three months. The benefit under section 382-B, Cr.P.C. was also extended to him. The learned trial Court has also submitted Murder Reference No.22/RWP of 2008 under section 374, Cr.P.C. for confirmation or otherwise of the death penalty awarded to the appellant. As both these matters are inter-connected and inter-linked so are being decided through this single judgment.

2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PA/1) recorded on the complaint of Ghulam Shabbir son of Muhammad Bakhsh, Caste Mistri, a labourer by profession, resident of Dandot. Police Station Pind Dadan Khan, is that on the night between 25-9-2006/26-9-2006 the complainant, his brother Muhammad Tanvir, father Muhammad Bakhsh, mother Suban Bibi and sister Zahida Bibi slept in their house as per routine. At about 2-00 a.m. his father Muhammad Bakhsh got up to ease himself and proceeded towards lavatory. Rustam son of Munir Ahmad, Caste Musaali, resident of the village armed with Dagger like knife was standing there. On seeing him, Muhammad Bakhsh tried to catch him and raised alarm. The complainant and his brother Muhammad Tanvir on report of alarm ran towards their father. In the meanwhile Rustam gave a straight blow with knife, which landed on the left side of his chest. The second blow given by him landed on the left flank of complainant's father whereas the third hit him on the left wrist. Muhammad Bakhsh fell on the ground. Muhammad Tanvir moved ahead to rescue him and Rustam gave a blow with knife, which hit him on the right wrist. On alarm the other members of the family also got up. The accused appellant fled away while waiving the knife. Muhammad Bakhsh died at the spot. It was stated that two days back at `Aishwela' the deceased had forbidden the appellant from passing through the street and on this grudge he caused Qatl-e-amd of the deceased and injuries to Tanvir P.W.

3. The appellant was arrested on 10-10-2006. After investigation he was sent up to face the trial. He was charged under sections 302/337-F(i), P.P.C. He pleaded not guilty and claimed the trial.

4. The prosecution had examined 11 witnesses in support of its allegations. The medical evidence was adduced through Dr. Zulfiqar Sherazi (P.W.5), who conducted the autopsy of the dead body at 7-45 a.m. on 26-9-2006. He found following injuries on the person of the deceased:-- (1) An incised wound 3 x 2 cm on interior part of the chest, slightly on left side, near mid-line 9 cm lower and medial to left nipple, going deep. (2) An incised wound 5 x 4 cm on left side of abdomen, large intestine and omentum had come out. (3) An incised wound 3 x 1.5 cm on interior of left wrist joint. He opined that injury No.1 had damaged liver and vital organ i.e. chest, which also caused haemorrhage and shock, which was sufficient to cause death in ordinary course of nature. Other injuries caused haemorrhage. All the injuries were anti-mortem in nature and were caused with sharp-edged weapon. The probable time between injuries and death was within 5 minutes and between death and post mortem examination within 6 hours. He proved the postmortem report (Exh.PC) and the Pictorial Diagrams (Exhs.PC/1 and PC/2). He further stated that on the same day prior to the postmortem examination, he had examined Muhammad Tanvir and found an incised wound 4 x 0.5 cm on interior part of the right fore arm, which was skin deep. The probable duration of the injury was three hours and the same was caused with sharp edged weapon. He proved the MLR (Exh.PD).

5. The ocular account was furnished through Ghulam Shabbir (P.W.9) and Muhammad Tanvir (P.W.10). Ghulam Shabbir (P.W.9) reiterated almost the contents of his statement (Exh.PA) and added that he had identified the accused in the light of the bulb. Muhammad Tanvir (P.W.10) stated that on 26-9-2006, he along with his father Muhammad Bakhsh, brother Ghulam Shabbir, mother Sooban Bibi and sister Zahida Begum were sleeping in the house. At about 2-00-a.m. his father awoke up to answer the call of nature and was proceeding towards toilet. Meanwhile the accused present in the Court, namely Rustam was standing while armed with dagger near the toilet. His father raised alarm and tried to catch hold of the accused. After hearing alarm raised by the father, lie, his brother Shabbir, mother Sooban Bibi and sister Zahida Begum awoke up. They saw that accused Rustam present in the court inflicted an injury with Dagger on the left side of the chest on his father. He inflicted second injury with Dagger, which hit his father on the left flank. The accused made 3rd infliction which hit his father on the left wrist. His father fell on the ground. He proceeded forward to rescue his father and the accused made an attack with Dagger, which hit him on his right wrist. Rustam accused while brandishing Dagger and harassing them fled away. The deceased succumbed to the injuries at the spot. The occurrence was witnessed by hint, his brother Ghulam Shabbir. mother Suban Bibi and sister Zahida Bibi. He was medically examined. He also identified the dead body of his father in the hospital. The motive behind the occurrence was that his father had forbidden the accused Rustam from passing through the street.

6. Zafar Iqbal (P.W.7) stated that on 16-10-2006 the accused during investigation made a disclosure and led to the recovery of knife P.4 from a `Patti', which was lying in the eastern room of his house situated in Colony of Dandot. The I.O. secured the same through memo of recovery (Exh.PL) attested by him and Abdullah P.W. (since given up). Muhammad Afsar (P.W.6) stated that the I.O. secured the bloodstained earth with `Khurpa' converted it into a sealed parcel and secured through metro of recovery (Exh.PE) attested by him and Muhammad Ashraf P.W. (since given up). Akhtar Naqash, Draftsman (P.W.8) proved the site plan (Exhs.PF PF/1 and PF/2).

7. Hamid Khan S.I/I.O. appeared as P.W.11 and stated that after receiving the information, he arrived at the spot. He recorded the statement of Ghulam Shabbir (P.W.9). He prepared the injury statements of Muhammad Bakhsh deceased and Tanvir P.W. (Exh.PG) and Exh.PH), inquest report (Exh.PJ) and sent the dead body and injured Tanvir to THQ Hospital, Pind Dadan Khan through Ghulam Haider Rehman, Constable. He prepared the rough site plan (Exh.PK). He also proved the recovery memo (Exh.PE) regarding securing of the bloodstained earth and recovery memo (Exh.PB) regarding securing of the last worn clothes of the deceased. He proved the notes in red ink on the site plans (Exhs.PF PF/1 and Exh.PF/2). He further stated that he arrested the accused/appellant on 10-10-2006, who during investigation made a disclosure on 16-10-2006 and led to the recovery of knife Dagger P.4, which was secured through memo Exh.PL. The prosecution also tendered in evidence the report of the Chemical Examiner (Exh.PM) and report of the Serologist (Exh.PM/1).

8. The accused in his statement under section 342, Cr.P.C. had denied the correctness of the allegations levelled by the prosecution and truthfulness of the witnesses produced by it. He contended that the F.I.R. was recorded after preliminary investigation and obtaining false medical report of Muhammad Tanvir. It was stated that he did not make any disclosure or lead to the recovery of knife PA. He contended that he was innocent and has been made an escape goat by the I.O.

9. After conclusion of the trial, the learned trail Court proceeded on to convict and sentence the appellant as stated above.

10. Syeda B.H. Shah, Advocate, learned Defence Counsel provided at State expenses has vehemently contended that the deceased was killed by some unknown person during unseen occurrence and the appellant was roped falsely due to suspicion. It is contended that there are vital discrepancies in the statements of P.Ws. and they have made dishonest improvements so they cannot be safely relied upon. It is urged that the recovery of the weapon of offence allegedly made at the instance of the appellant is doubtful and as such cannot be used as corroborative piece of evidence.

11. The learned DPG has controverted the above contentions and contended that it was a promptly lodged F.I.R. without deliberations. It is urged that the appellant is specifically nominated in the F.I.R. and both the P.Ws., who have no grudge against him have fully supported the prosecution version and proved that he had caused Qatl-e-amd of their father. It is contended that Muhammad Tanvir P.W., was injured during the occurrence so his presence at time and place of occurrence is established and his evidence has rightly been believed by the learned trial Court. It is further urged that the complainant and Muhammad Tanvir both are sons of the deceased so there was no reason for them to let the actual culprit escort free and implicate the. accused falsely. It is vehemently urged that the occurrence took place at 2-00 a.m. in the house of the deceased and witnesses so their presence was natural and they have categorically stated that the appellant was the person, who had caused Qatl-e-amd of their father so their evidence coupled with the corroborative evidence available on the record is sufficient to prove the guilt of the appellant.

12. Although Muhammad Tanvir (P.W.10) has stated in the examination-in-chief that he had seen the accused while inflicting injuries on the person of his father but in the cross-examination he had stated that 4, the accused did not inflict (blows) in their view. This part of the statement cuts roots of the prosecution version. The learned DPG has vehemently contended that this appears to be result of some clerical/ typographical mistake. The Urdu version of the evidence was checked wherein it is clearly written asunder:-- There is no typographical or clerical mistake. It is true that according to the prosecution version, this witness had himself sustained an injury during the occurrence but P.W.5 Doctor, who had examined him stated that no blood had oozed from this injury and there was possibility of causing of this injury by friendly hand or self-infliction. The injury oil the person of the witness does not prove that he has spoken the truth. Categorical admission in the cross-examination that the blows were not inflicted in their sight creates a strong doubt as to correctness of prosecution version. Ghulam Shabbir complainant has no doubt reiterated the contents of the F.I.R. but he has stated that he was sleeping inside the room at the time of the occurrence. In his statement (Exh.PA) he had not disclosed this fact. In the site plan the deceased was shown to be sleeping on a cot in the courtyard but this witness had stated that his father, younger brother, mother and sister were sleeping in the room. He stated that on the night of occurrence, there was complete darkness. On a question from the learned defence counsel he stated that in his statement before the Police he got it recorded that at the time of occurrence, the bulb was lit. On confrontation, it was found not to be so recorded in his statement (Exh.PA).

13. Another important fact, which emerges on minute perusal of the evidence is that according to Muhammad Afsar (P.W.6) the bloodstained earth was taken from beneath the cot. Hamid Khan I.O. (P.W.1 l) stated that he collected the blood-stained earth from underneath the cot by scratching with a `Khurpha'. It is, thus, proved that the bloodstained earth was lying at point No.4 underneath the cot on which the deceased was sleeping.' No blood was secured from the place shown at point No.2 according to the I.O. and Muhammad Afsar P.Ws.. This clearly shows that the deceased was inflicted injuries while lying on the cot so statements of both the P.Ws. 9 and 10 and he had proceeded to the lavatory and sustained injuries at the hands of the appellant there. The distance between point No.4 and point No.1 is 25 feet. Point No.2 is three feet further away from point No.1 so the distance between points No.2 and 4 would be about 28 feet. No blood was secured from the place where, according to P.Ws., the deceased had sustained injuries with knife and the blood was found underneath the cot where the dead body was lying so it would be obvious that the witnesses had not seen the occurrence. It appears that the witnesses were sleeping with their families in the rooms and during darkness the deceased was caused injuries and the P.Ws. had not witnessed it as is categorically stated by P.W.10. It was pitch darkness as stated by P.W.9. He stated that he saw the occurrence from 40 feet and then staled that from 20 feet. The presence of the electricity bulb is not mentioned in the F.I.R. The possibility of mis-identification in pitch darkness from such distance cannot be ruled out. The learned DPG has vehemently contended that the recovery of Dagger P.4, which was found to be stained with blood as per report of the Chemical Examiner (Exh.PM) and with human blood as per report of the Serologist (Exh.PM/1) after disclosure and on pointation of the accused is sufficient to prove his guilt and he has rightly been c9nvicted and awarded the death penalty. The ocular account does not inspire confidence. The conviction cannot be based on the alleged recovery of the weapon of offence, which otherwise is made from the house jointly occupied by father of the appellant and other members of his family. The witness stated that they remained standing in front of the door whereas the I.O. and accused went inside the room and brought the knife. This means no recovery was effected in his presence and his statement cannot be safely relied upon.

14. In the light of above findings, we are of the considered view that the prosecution has not brought home the charge against the appellant beyond reasonable doubt. The learned trail Court erred in recording conviction and awarding sentence to the, accused. The impugned judgment is not sustainable and the same is accordingly set aside. Consequently the appeal in hand is accepted and Murder Reference No.22/RWP of 2008 is answered in the negative. The appellant is acquitted of the charge. He is in the Jail and be released forthwith if not required to be detained in any other case. N.H.Q./R-80/L Appeal accepted.