1988 P Cr (PLP)

AFRASIAB KHAN, J.‑‑The appellant, Soni Khan son of Ghulam Hussain aged 40 years, was convicted under section 302, P . P . C . for the murder of Umar Draz aged 26/27 years and was sentenced to death by the learned Sessions Judge, Sargodha vide his judgment, dated 30‑3‑1985. He was also fined Rs.5,000 and in default thereof to suffer two years' rigorous imprisonment. It was directed that the amount of fine if realized will be paid to the heirs of the deceased as compensation. Nazar Hayat son of Murid Hussain and Muhammad Feroze son of Soni Khan were acquitted by the learned trial Court vide the same judgment.

2. In brief, the prosecution case as mentioned in the F.I.R. Exh. p D. is that the complainant Muhammad Fayyaz P.W.5 is the resident of Chak No.23/SB, District Sargodha. He stated that they had kept their cattle in the Dera of his uncle Muhammad Sher which Dera is situate at Killa No.21 Square No.75. On the day of occurrence namely 29‑12‑1983 at about Peshiwela, the complainant was coming to the Dera of his uncle Mansab Khan P.W.6 to look after his cattle. Mansab Khan P.W.6 and Muhammad Khan (not produced) were also coming with him. They were at a distance of about two Kanals from the Dera of Muhammad Sher when they saw the appellant, Soni Khan armed with a rifle, while exchanging hot words with Umar Draz. The appellant Soni Khan was accompanied by Nazar Hayat and Muhammad Feroze both armed with guns. Soni Khan appellant, was saying to the brother of the complainant namely the deceased Umar Draz that as to why the cotton plants standing in the land of his uncle Muhammad Sher have not been cut and that the land has not been vacated as he has to sow the wheat crop in the said land. In reply the deceased said that he has no concern with the cotton plants and that the appellant was a tenant and he should cut the cotton plants himself or in the alternative, he should approach his uncle Muhammad Sher for the purpose of cutting the cotton plants. However, the appellant, Soni Khan, replied that you have every thing in common with your uncle. The appellant hurled abuses upon the deceased and in return he also paid in the same coin. The companions of the appellant also gave abuses to the deceased. Upon this the appellant, Soni Khan, loaded his gun and shouted. The deceased ran towards his Haveli. As soon as he reached near the Haveli, he took a turn and saw behind whereupon the appellant, Soni Khan, fired from his rifle which hit on the chest of the deceased. The complainant further stated that the appellant, Soni Khan, fired at the instigation of the acquitted co‑accused, Nazar Hayat and Muhammad Feroze. On the fall of the deceased, the appellant and the acquitted co‑accused ran away. The complainant stated that the blood was coming out from the injuries. The victim was placed on a cot and was being carried for the purpose of treatment. However, the victim succumbed to the injuries in the way. About the motive, the complainant stated that his uncle Muhammad Sher had given a piece of land on rent to Ghulam Hussain and Murid Hussain about 4/5 years ago. This year, the complainant's uncle had asked the accused party to vacate the land. The accused party had a suspicion that the complainant as well as his brother, Umar Draz, have instigated their uncle Muhammad Sher for vacation of the land from Ghulam Hussain etc. Even four days ago there was a quarrel between the appellant, Soni Khan, and the deceased brother of the complainant which quarrel was patched up on the intervention of the respectables of the village.

3. Abdul Karim, S.I. P.W.8 was posted at Police Station Bhagtanwala at that time and he investigated the case. On 29‑12‑1983 the complainant Muhammad Fayyaz made a statement before him which was recorded vide F.I.R. Exh. P.D. The spot was inspected by the witness and during the spot inspection, blood‑stained earth was taken from the place of occurrence vide Exh.P.E. The crime empty P.4 was also taken into possession vide memo. Exh.P.F. Injury statement Exh. P.H. and inquest report Exh. P.J. were prepared by the witness. The appellant, Soni Khan, was arrested on 31‑12‑1983. While in custody, the appellant led to the recovery of the rifle P.5 from his residential house. The said rifle was taken into possession vide memo Fxh.P.G. The last worn clothes of the deceased, Kurta P.1, Vest P.2 and Chadar P.3 all blood‑stained were taken into possession vide memo. Exh. P. B . Site plan of the place of occurrence was got prepared by Muhammad Nazir P.W.4, Patwari. In cross‑examination the witness admitted as correct that he found the dead body of Umar Draz, lying in his house which is situated in the village Abadi of Chak No. 23/S.B. He stated that the dead body was sent to mortuary on 29‑12‑1983 before 12 o'clock at night. He conceded that he did not find the dead body of Umar Draz lying outside the village abadi. He denied that in column No.4 of Exh. P.J. name of Muhammad Fayyaz has been overwritten. The witness admitted that in column No. 4 it appears that the name of Muhammad Fayyaz has been overwritten. He also admitted that name of Mansab Khan P.W.6 does not appear as witness in Exh.P.J. The witness stated that he had sent a parcel containing blood‑stained earth and crime empty to Police Station on 30‑12‑1983. However, he admitted that he did not mention this fact in the diary of the case. He admitted that in the report submitted by him under section 173, Cr.P.C., he did not mention the presence of crime empty at the spot. The report of Chemical Examiner vide Exh. P.K. showed that earth was stained with blood. Similarly the report Exh. P.L. of the Serologist disclosed that earth was stained with human blood. The report of the Director Forensic Science Laboratory vide Exh. P.M. disclosed that the crime empty of .303 bore marked as 'C' was examined and compared with the test empties prepared from the rifle of .303 bore and it was found that the crime empty of .303 bore had been fired from the rifle of .303 bore.

4. Dr. M. Altaf Hussain, S.M.O., D.H.Q. Hospital, Sargodha conducted post‑mortem examination on the dead body of Umar Draz on 30‑12‑1983 at 11‑00 a.m. He found the following injury on the dead body:‑‑ "A fire‑arm wound of entry ??? x 1/3" x chest cavity deep on the front of right upper chest, 1" from central line and 1/2" below the right clavical. With a fire‑arm lacerated wound of exit 1" x 3/4" on the back of right upper chest, 5" from central line on scapular region." The witness opined that the cause of death was due to haemorrhage and shock as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. The injury was inflicted by fire‑arm and was ante‑mortem. Time between injury and death was a few minutes or so and that between death and post‑mortem examination was within 24 hours. In cross‑examination the witness stated that the time between death and post‑mortem examination may be between 18 and 24 hours and it cannot be less than 18 hours.

5. Eye‑witness account was provided by Muhammad Fayyaz P.W.5 and Mansab Khan P.W.6. The deceased Umar Draz is the real brother of the complainant Muhammad Fayyaz P.W.5. Soni Khan, appellant is father of Muhammad Feroze, acquitted co‑accused and cousin of Nazar Hayat, acquitted co‑accused. The witness gave the same version of the prosecution case before the trial Court which version was given by him before the investigating agency. The witness stated that he was residing at the Dera of his uncle Muhammad Sher in Killa No. 21 Square No. 75 of Chak No. 23/SB. He had kept his cattle on the said Dera. On the day of occurrence at about Peshiwela he was going towards his Dera from the Dera of his uncle Mansab Khan P.W.6. Both Mansab Khan and Muhammad Khan P.Ws were also in his company. When they were at a distance of two kanals from the Dera of Muhammad Sher they .saw the appellant Soni Khan armed with a rifle, Nazar Hayat armed with a gun and Muhammad Feroze, acquitted co‑accused, armed with a gun present there. Soni Khan, appellant, was exchanging hot words with Umar Hayat, deceased, on the question of vacation of the land where cotton plants were still standing. The deceased Umar Draz told the accused party that the appellant, Soni Khan, was a tenant of Muhammad Sher and, therefore, he should himself cut the cotton plants or Muhammad Sher should cut the said plants standing in the land in question. On the receipt of the injury, Umar Draz fell down on the ground and thereupon all the three accused ran away from the spot with their respective weapons. In cross‑examination, the witness clearly admitted that he originally belongs to village Batala, District Khushab and owns land there. He admitted that he as well as his deceased brother Umar Draz did not own any land nor any residential Ahata in Chak No. 23/SB. The witness stated that the Police Station is at a distance of about seven miles away and it might have taken half an hour to one hour from the place of occurrence to reach the police station. He stated that he reached with the police near the dead body of Umar Draz outside the village at 5‑00 p.m. He further disclosed that the dead body remained lying at that very place for the whole night and was carried to the hospital in the morning. The dead body was taken to mortuary at about 5/6 a.m. and he reached the hospital at about 9/10‑00 a.m. The witness admitted further that the complainant party had a long‑standing enmity with Mandas of Chak No. 23‑SB. They had committed three murders of the relatives of the witness namely, Shafi, Sikandar and Allah Bakhsh. Mansab Khan P.W.6 is the real uncle of the complainant as well as the deceased Umar Draz. The witness repeated the prosecution story. In cross‑examination the witness admitted it as correct that all the P.Ws. namely, Muhammad Fayyaz P.W.5. Muhammad Khan, Mazhar Hayat and himself were closely related inter se. He stated that the deceased was fired at on a Thara where the fodder cutting machine is installed. He also admitted that they did not think it proper to take the dead body of Umar Draz to police station. He stated that the dead body was carried to Civil Hospital, Sargodha at about 6/7‑00 a.m. on the following day.

6. The appellant denied the allegations levelled against him while making a statement under section 342, Cr.P.C. He admitted that his father Ghulam Hussain as well as his uncle Murid Hussain were cultivating the land of Muhammad Sher uncle of the deceased Umar Draz for the last about 4/5 years as tenants. He stated in detail that the complainant party has a long‑standing enmity with Mandas of Chak No. 23/SB, and several murder cases were got registered by the complainant party against the above‑mentioned Mandas. He stated that his uncle as well as his other relatives appeared as prosecution witnesses on behalf of the complainant party in the said murder cases and they did not support the prosecution version. Due to this reason the complainant party in the case developed enmity against the accused party. The appellant stated that the complainant party has many other enemies in the village and that the deceased was done to death during the night time and that the occurrence was not witnessed by anybody. He stated that on account of the ill‑will for not supporting them in their statements in murder cases against Haq Nawaz and on account of suspicion, he has been falsely involved in this case.

7. The learned trial Court after believing the eye‑witnesss account, the recovery of gun as well as the crime empty and the medical evidence convicted and sentenced the appellant as stated earlier.

8. Learned counsel appearing on behalf of the appellant submitted that it is established on record that the occurrence was not witnessed by the prosecution witnesses and further the eye‑witness account is in direct conflict with the medical evidence. Learned counsel forcefully urged that the eye‑witnessses are closely related and could not be relied upon. He stated that the only independent witness in the case namely Muhammad Khan has not been produced and the presumption in law is that if the witness had been produced, he would not have supported the case of the prosecution. Learned counsel submitted that the presence of the eye‑witnesses on the spot is doubtful inasmuch as in the inquest report Exh. P.J. there is overwriting in the name of Muhammad Fayyaz. Larned counsel stated that the prosecution is guilty of forgery inasmuch as they have tried to show presence of this witness by committing forgery in the documents of the case. Learned counsel maintained that the recovery could not be relied upon on the ground that the crime empty has not at all been shown e by the investigating officer in his report submitted under section 173, Cr. P. C . Learned counsel lastly submitted that the parties have entered into a compromise and there is no difference left between the parties now. The learned State counsel has supported the conviction and sentence of the appellant. However, he stated that in view of the compromise having been entered into between the parties, lenient view on the question of sentence may be taken.

9. We have heard the learned counsel for the parties and have perused the record of the case. We are of the view that the prosecution has not been able to prove its case beyond reasonable doubt. It appears from the record that the occurrence was not witnessed by Muhammad Fayyaz P.W. 5 and Mansab Khan P.W.6. The presence of Muhammad Fayyaz, complainant P.W.5 at the spot is doubtful inasmuch as admittedly he does not own any land, Dera or Ahata in Chak No. 23/SB, where the occurrence has taken place. The witness belongs to village Batala, District Khushab, where he has agricultural land. It appears from the facts and circumstances of the instant case that the witness might have been summoned from his Chak in order to become the complainant in the case. He has clearly admitted that the lead body of Umar Draz, remained lying at the place for the whole night and the same was carried to hospital for the purpose of post‑mortem in the morning. The witness stated that the dead body was taken to the mortuary at about 5/6 a.m. and that they reached the hospital at 9/10 a.m. This fact clearly shows that if the complainant was present in the village and that he had seen the occurrence which according to the version of the prosecution had taken place at Peshiwela then the matter could be reported to the police immediately and the police could be brought at the place of occurrence without losing any time. This is in the evidence of this witness that it takes half an hour to one hour to reach the police station from the place of occurrence. Thus the prosecution has not at all been able to explain as to why the dead body of the deceased remained lying the whole night at the place of occurrence and why the same was not shifted immediately to the hospital. This is a circumstance which wholly goes against the very story of the prosecution. We are not prepared to believe the prosecution version that in the beginning when Umar Draz, deceased, was fired at he was lying there and was carried for the purpose of treatment to the hospital and when he died in the way he was brought back. It is difficult to believe this version of the prosecution because according to the medical evidence, on the receipt of the injury, Umar Draz died after a few minutes. There was, therefore, absolutely no occasion to shift the deceased for treatment purposes to hospital. This version has been fabricated to support the prosecution case. To the same effect is the statement of Mansab Khan P.W.6. Again Mansab Khan P.W.6 is closely related to the deceased. The witness admitted in cross‑examination that they did not think it proper to take the dead body to police station. He also admitted that the dead body was brought to hospital early in the morning at 6/7 a.m. on the next day. The witness admitted that many criminal cases including murder cases are pending between the complainant party and Mandas of the village. Non‑mention of this witness like the complainant in the inquest report Exh. P.J. is proved beyond doubt. Abdul Karim P.W. 8 the Investigating Officer is the author of inquest report Exh. P.J. He has admitted that in column No. 4 of Exh. P.J. the name of Muhammad Fayyaz has been overwritten and further that name of Mansab Khan P.W.6 is not shown as a witness in Exh. P.J. This documentary evidence clearly shows that Mansab Khan P.W.6 as well as Muhammad Fayyaz, complainant P.W. 5 were not present at the spot when the occurrence took place. In our considered view both these witnesses were planted to make out some case against the appellant. As stated earlier the complainant was summoned from his native village of District Khushab, as far away place from the place of occurrence, and similarly Mansab Khan P.W.6 was later on introduced as an eye‑witness in the case. The presence of P.W.6 at the spot is highly doubtful because his name has not been mentioned as a witness in Exh.P.J. The inquest report is a document which is prepared by the Investigating Officer immediately after the inspection of the dead body. In the instant case, the mere fact that Mansab Khan P.W. 6 is not mentioned in the inquest report Exh.P.J. will show that he was not present at the spot. Even otherwise if these two witnesses were present at the spot and in fact they had witnessed the occurrence, they were supposed to bring the police at the spot immediately and the dead body should have been brought by then to hospital immediately. In the instant case as observed earlier, the dead body was not brought for post‑mortem examination to the hospital soon after the occurrence but the prosecution evidence shows that the dead body remained lying at the spot the whole night. This fact alone has made the case of the prosecution wholly doubtful. It is further established from the record that when the Investigating Officer reached the spot, he found the dead body at the Dera of the complainant and he later on visited the place of occurrence. This shows that the dead body was not found by the Investigating Officer at the place of occurrence. From the trend of the prosecution evidence it is not established as to where the occurrence has taken place. This circumstance will also give support to the defence version that the occurrence had taken place in the darkness of the night and that the same was not witnessed of the prosecution witnesses. In view of this it is hard to believe the eye‑witness account which accordingly stands discarded. From the site plan Exh.P.C. it is clear that murder has taken place in Killa No. 20 of Square No.75. Muhammad Nazir Patwari P.W.4 who prepared the site plan Exh.P.C. in his statement stated that according to the instructions of the police officer as well as the eye‑witnesses the occurrence took place in Killa No. 20 of Square No.

75. However, the eye‑witness account provided by Muhammad Fayyaz P.W.5 and; Mansab Khan P.W.6 runs counter to the site plan Exh.P.C. and the statement of Muhammad Nazir P.W.4. Their stand is that the occurrence has taken place in Killa No. 21 of square No.75. This, is a very material contradiction in the case of the prosecution inasmuch as the prosecution has miserably failed to establish as to where the murder took place. It is the duty of the prosecution to establish the place of occurrence. Additionally the crime empty found at the place of occurrence does not find any mention in the report submitted by the Investigating Officer under section 173 Cr.P.C. Further there is n mention of the crime empty in the site plan Exh.P.C. Thus the recovery of crime empty from the place of occurrence could not be relied upon because the same has become doubtful in view of the evidence of Investigating Officer P.W.8 and Patwari P.W.4. Even they motive as set‑up by the prosecution appears to be feeble, weak and ambiguous. There is nothing in the evidence that in fact Umar Draz, deceased, instigated his uncle Muhammad Sher for the vacation of) the land in question from the accused party. Even assuming that the motive as set up by the prosecution is true then too the accused should have a grudge against Muhammad Sher and certainly not against the deceased Umar Draz Thus, the motive part of the prosecution story has not at all been established beyond doubt.

10. The upshot of the above discussion is that the prosecution has wholly failed to bring home the guilt to the appellant. Accordingly, we proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith provided, of course, he is not required in any other criminal case., The death sentence awarded to the appellant is NOT confirmed. M.Y.H./S‑179/L????????????????????????????????????????????????????????????????????????????????? Appeal allowed.