2015 P Cr (PLP)

SADAQAT ALI KHAN, J.

This single judgment shall dispose of Criminal Appeal No. 65 of 2011 filed by Muhammad Aslam and Gulzar Ahmed present appellants and Murder Reference No.5 of 2011 sent by the trial Court for confirmation of the death sentence of appellants or otherwise as both matters have arisen out of the same judgment dated 10-2-2011 passed by learned Additional Sessions Judge, Haroonabad according to which the present appellants were convicted and sentenced as under:- "Muhammad Aslam was convicted under section 302(b), P.P.C. and sentenced to death for committing Qatl-i-amd of Ali Ahmed deceased along-with payment of compensation Rs.1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof six months' S.I. Gulzar Ahmed was convicted under section 302(b), P.P.C. and sentenced to death for committing Qatl-i-amd of Ali Ahmed deceased along with payment of compensation Rs. 1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof six months' S.I. in case FIR No. 481 dated 16-10-2010 under section 302/34, P.P.C. police station, Faqirwali Tehsil Haroonabad District Bahawalnagar.

2. The facts of the case has been stated by Muhammad Abbas complainant (P.W.3) in his statement before the trial Court and same statement is hereby reproduced for narration of the facts:- "Ali Ahmad deceased is my real brother. About 3 months ago at about evening time, he went to the house of Muhammad Arif Lohaar to visit him as he was ailing but he did not return within considerable time. I along with Zulifqar and Shamim Akhtar P.Ws. proceeded to the house of said Muhammad Arif Lohaar. When we reached in the Chowk, we saw that my brother was coming back. We saw the deceased as electric bulb was enlightening. One unknown culprit said in lowed voice that Ali Ahmed is coming. Whereupon Muhammad Aslam and Gulzar Ahmad accused present before court armed with Tokies along with their companion Nauman and Muhammad Asif (since declared innocent), who were also armed with hatchet emerged there. In our view Gulzar accused gave Toky blow hitting the neck of the deceased similarly, Aslam accused also gave Toky blow on the temporal region of the deceased, after that both the accused mentioned above gave successive blows on head of the deceased. Muhammad Nauman and Muhammad Asif accused also gave hatchet blows to the deceased. Two unknown culprits having guns with them restrained us and said in case if we step forward we will also be done to death. We sounded alarm, no one except Khalid Javed attracted at the spot. Motive behind this occurrence was that mother of Aslam accused obtained divorce from his father and contracted second Nikah with the deceased, due to this grudge Muhammad Aslam accused along with Gulzar Ahmed, Nauman and Asif committed the murder of my brother. My brother succumbed to the injuries at the spot. I moved application Exh.PC for the registration of FIR which bears my thumb impression. After postmortem, examination, I received the dead body of my brother vide receipt Exh.PD".

3. After registration of the case, investigation started and on completion of the investigation report under section 173, Cr.P.C. was submitted in the trial Court.

4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the Marge on 13-12-2010 against present appellants Muhammad Aslam and Gulzar Ahmed under section 302/34, P.P.C. to which they pleaded not guilty and prosecution evidence was summoned.

5. Prosecution produced Ghulam Yasin P.W.1, Muhammad Arshad Constable P.W.2, Muhammad Abbas complainant P.W.3, Khalid Javed P.W.4, Ghulam Mustafa P.W.5, Muhammad Aslam Tahir, SMO, P.W.6, Amjad Ali P.W.7, Rafaqat Ali Constable P.W.8, Abdul Latif SI P.W.9 Haji Mumtaz Ahmad P.W.10 whereas P.Ws. Shamim Akhtar was given up being won over and Zulifqar Ali, Muhammad Nawaz and Muhammad Ashraf were given up by the prosecution being unnecessary and tendered in evidence site plan Exh.PA, recovery memo. of last worn clothes of the deceased Exh.PB, FIR Exh.PC, receipt of dead body Exh.PD, recovery memo. of blood stained earth Exh.PE, post mortem report Exh.PF, injury plan Exh.PG, inquest report Exh.PH, site plan Exh.PJ, recovery memo. of Toki Exh.PL, report of Chemical Examiner regarding blood stained earth Exh.PM, report of Chemical Examiner Tokki of Muhammad Aslam Exh.PN, report of Serologist Exh.PN/1, report of Chemical Examiner regarding Tokki of Gulzar Ahmad Exh.PO, report of Serologist Exh.PO/1 and closed the prosecution evidence.

6. Medical evidence was furnished by Dr. Muhammad Islam Tahir SMO P.W.6, who stated that on 16-10-2010, he conducted postmortem examination on the dead body of Ali Ahmed deceased and observed as under:- "EXTERNAL APPEARANCE: Dead body of a middle age male, normally built, wearing light brown colour Qameez, Chaddar and Saafa. Clothes were blood stained, left eye was opened, right eye and mouth were closed. Rigor mortis present on neck, face, upper limbs, back and lower limbs. Postmortem staining present on lumber areas. EXTERNAL INJURIES: (1) An incised wound 11 cm x 4 cm extending from right cheek to right head, above the right ear. (2) An incised wound 13 cm x 4 cm extending from right cheek to right lateral head, cutting right ear on the way. (3) An incised wound 10 cm x 3 cm underline skin and muscle cut on right side of neck. Lower to right ear. (4) An incised wound 13 cm x 5 cm on right and anterior neck, thyroid cartilage, major blood vessels and muscles cut on right side of neck. (5) An incised wound 4 cm x 1 cm, on right forehead to cm above the right eyebrow. (6) An incised wound 7 cm x 3 cm on left posterior head. (7) An incised wound 5 cm x 2 cm on left posterior head. Two cm lower to injury No.6. (8) An incised wound 5 cm x 2 cm just lower to injury No.7. (9) An incised wound 6 cm x 2 cm on right posterior head/in-direction. INTERNAL POSTMORTEM: CRANIUM AND SPINAL CORD. Injury to skull already described. Fracture seen of left side of skull ward at posterior aspect. Membranes, brain and spinal cord healthy. THORAX. Trachea cut at sight of injury No.4. All other organs of thorax healthy. ABDOMEN. All other organs in the abdomen healthy. Stomach was empty. MUSCLES BONES AND JOINTS. Injuries already described. In my opinion cause of death in this case was haemorrhage and shock due to injury Nos.1 to

9. All injuries were inflicted by sharp edged weapon and ante-mortem. The time lapsed between injuries and death was immediately and time lapsed between death and postmortem was within 24 Hours".

7. On the other hand, statements of present appellants Muhammad Aslam and Gulzar Ahmed were recorded under section 342, Cr.P.C. who refuted the allegations so levelled against them and did not opt to appear as a witness under section 340(2), Cr.P.C. and also did not produce the defence evidence and in reply to question "why this case against you and why the P.Ws. deposed against you?" the appellant Muhammad Aslam replied as under:- "Deceased Ali Ahmad was a criminal and there were so many cases of heinous nature were registered against him at various police stations. So many people of the locality were having grudge against him as he used to tease the people. Furthermore many people out of the locality were also inimical to him. I have no motive to commit the murder of deceased as he was step-father of mine. My mother and my step-father were residing happily and my mother has been performing her matrimonial obligations in the house of deceased. I was residing with my mother and step-father in the same house. Some unknown persons committed the murder of deceased, in fact, it was a blind murder and nobody has witnessed the occurrence. Complainant is real brother of deceased, he raised suspicion that I have might a hand in the murder of the deceased as complainant was not happy over the marriage with my father. I have been challaned by the police on the basis of suspicion." Likewise, in reply to question "why this case against you and why the P.Ws. deposed against you?" the appellant Ghulzar Ahmed replied as under:- "I have falsely involved in this case being friend of Muhammad Aslam accused. Furthermore I rely upon the statement of my co-accused Muhammad Aslam made in response to the same question".

8. After conclusion of the trial, learned trial Court convicted the present appellants Muhammad Aslam and Ghuzar Ahmed with above stated sentences through judgment dated 10-2-2011. Hence this appeal.

9. Learned counsel for the appellants contended that:- (i) the judgment of the trial Court dated 10-2-2011 is against law and facts on the file and is liable to be set aside. (ii) that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the P.Ws. further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellants on the basis of surmises and conjectures; (iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law; (iv) lastly submitted that appeal may be accepted and the judgment of the trial Court dated 10-2-2011 may kindly be set aside and appellants may be acquitted.

10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:- (i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.

11. We have heard the learned counsel for the parties and perused the record.

12. The detail of prosecution case as mentioned in FIR Exh.PC/1 recorded on the written application Exh.PC of Muhammad Abbas complainant P.W.3 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

13. According to FIR Exh.PC/1, occurrence took place on 15-10-2010 at about 11/12-00 p.m. (night) whereas FIR was registered on 16-10-2010 at about 6-30 a.m. on the written application of Muhammad Abbas P.W.3 complainant real brother of Ali Ahmed deceased.

14. The distance between the place of occurrence (area of Chak No.428/6R) and Police Station Faqirwali is 14-1/2 Km. Further we have perused written application Exh.PC moved by Muhammad Abbas P.W.3 for registration of the FIR Exh.PC/1 where no date or time of writing of the application or moving of the application to SHO Police Station Faqirwali is mentioned. Further, no endorsement of the concerned police officer is present on the bottom of the application Exh.PC stated above, rather, we found thumb impression on the bottom of FIR Exh.PC/1 contrary to the practice as in column No.2 of the FIR Exh.PC/l, it is written that the FIR was being lodged on the written application Exh.PC of Muhammad Abbas complainant/P.W.3.

15. In view of the above, it is concluded that FIR Exh.PC/1 was lodged on 16-10-2010 at 6-30 a.m. with unexplained delay of about six hours from time of occurrence i.e. 15-10-2010 at about 11/12-00 p.m. (night) which delay in the circumstances and facts of the instant case casts serious doubt in the prosecution story and affect adversely to the prosecution. The delay in the instant case has great significance and it can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately prosecution may wish to implicate. Reliance is placed on case titled Mehmood Ahmad and 3 others v. The state and another (1995 SCMR 127) in which Hon'ble Supreme Court of Pakistan has observed at page 131 as under:- "Although, in some circumstances a delay of two hours may not be of much importance, yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate."

16. Exh.PF is post-mortem report pertaining to Ali Ahmed deceased according to which post-mortem examination was conducted on the dead body of Ali Ahmed deceased by Doctor Muhammad Aslam Tahir P.W.6 on 16-10-2010 at about 12-15 p.m. (noon) with unexplained delay of 12 hours from the date of occurrence i.e. 15-10-2010 at 11/12-00 p.m. (night) and Doctor Muhammad Aslam Tahir P.W.6 admitted in cross-examination that injuries statement (Exh.PG) and inquest report (Exh.PH) do not bear his signatures which itself creates doubt in the prosecution story and post-mortem examination had been conducted on the dead body of Ali Ahmed deceased with a noticeable delay which delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting the postmortem examination of the dead body conducted. Reliance is placed on case titled Irshad Ahmed v. The State (2011 SCMR 1190) in which Hon'ble Supreme Court of Pakistan has observed at page 1193 as under:- "We have further observed that the postmortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted".

17. Motive of the occurrence as given by Muhammad Abbas complainant P.W.3 is that Mst. Shamim Akhtar (given up P.W.) mother of Muhammad Aslam appellant had obtained divorce from his father and contracted second Nikkah with Ali Ahmed deceased and due to this grudge Muhammad Aslam present appellant along with Gulzar Ahmed appellant, Noman and Asif (since declared innocent) committed the murder of brother Ali Ahmed deceased. Absolutely, no date, month or year of divorce is mentioned by Abbas complainant P.W.3 in his written application Exh.PC as well in his statement before the trial Court. Likewise, he did not mention when Mst. Shamim Akhter mother of Muhammad Aslam present appellant contracted second Nikkah with the deceased Ali Ahmed. On the other hand, Muhammad Aslam present appellant in answer to question No.8 specifically stated that he had no motive to commit the murder of deceased as he was step-father of him and he was also living with his mother and step-father in the same house. During the trial, Mst. Shamim Akther had been given up being won over by the prosecution and there is no other evidence regarding motive given by prosecution.

18. In view of the above, it is our confirmed opinion that prosecution could not prove the motive story stated above against the present appellants, so evidence of motive furnished by Muhammad Abbas P.W.3 without any corroboration is hereby disbelieved.

19. Haji Mumtaz Ahmed P.W.10 stated that on 6-11-2010 he joined the investigation of this case with Abdul Latif SI/I.O. of this case P.W.9 and during the Gulzar Ahmed disclosed and led to the recovery of 'Toki' P-4 from his house which was taken into possession through recovery memo. Exh.PK and on the same day Muhammad Aslam appellant during interrogation disclosed and led to the recovery of 'Toki' Exh.P5 which was taken into possession through recovery memo. Ex.PL attested by him. This P.W.10 Haji Mumtaz Ahmed admittedly has not stated that 'Toki' P 4 and P-5 were blood stained and further he has not stated that from where Muhammad Aslam present appellant got recovered 'Toki' P-5.

20. We have also perused recovery memo. Exh.PL pertaining to 'Toki' P-5 allegedly recovered on the pointation of Muhammad Aslam present appellant and found as under:-

21. In view of the above, 'Toki' P-5 was not blood stained. Further, recovery memo. Exh.PK pertaining to 'Toki' P-4 allegedly recovered on the pointation of Gulzar Ahmed appellant has not been placed in paper book but we have perused the same from the record of the trial court available in the court today and found as under:-

22. It is nowhere mentioned in this recovery memo. Exh.PK that 'Toki' P-4 allegedly recovered on the pointation of Gulzar Ahmed appellant was blood stained. Further, Abdul Latif SI/I.O. of this case P.W.9 stated that on 6-11-2010 accused Gulzar Ahmed led to the recovery of 'Toki' P-4 from his house situated in Chak No. 428/6R and took the same into possession through recovery memo. Exh.PK attested by Haji Gulzar Ahmed P.W.10 and on the same day Muhammad Aslam appellant led to the recovery of 'Toki' P-5 from cattle shed situated in a house in Chak No. 428/6R and he made the same into sealed parcel and took into possession through recovery memo. Exh.PL by Haji Mumtaz Ahmed P.W.10. This witness Abdul Latif SI/I.O. of this case P.W.9 also did not state that both the "Tokies" P-4 and P-5 were blood stained.

23. In view of the above, positive reports of Chemical Examiner Exh.PO and Serologist Exh.PO/1 pertaining to 'Toki' P-4 allegedly recovered on the pointation of Gulzar Ahmed and positive Chemical Examiner report Exh.PN and Serologist Exh.PN/1 pertaining to 'Toki' P-5 allegedly recovered on the pointation of Muhammad Aslam appellant are the result of concoction and are not believable which are contrary to the recovery memos. Exh.PK and Exh.PL pertaining to "Tokies" P-4 and P-5 and the statements of Abdul Latif SI/I.O. of this case P.W.9 and Haji Mumtaz Ahmed P.W.10. Even otherwise, Muhammad Abbas complainant P.W.3 stated in his written application Exh.PC that Gulzar Ahmed and Muhammad Aslam had inflicted injuries to Ali Ahmed deceased with hatchets and not with 'Tokies'.

24. Muhammad Abbas complainant P.W.3 and Khalid Javed P.W.4 both claim themselves as eye-witnesses of the occurrence. Abbas is real brother of Ali Ahmed deceased whereas Khalid Javed P.W.4 is brother-in-law of Muhammad Abbas complainant P.W.3 Muhammad Abbas P.W.3 stated in his written application Exh.PC moved by him for registration of the FIR Exh.PC/1 that on 16-10-2010 on the night of occurrence his brother Ali Ahmed went to the house of Muhammad Arif Lohar to see him as he was ill and did not return for considerable time and he became worried whereas while appearing before the trial Court Muhammad Abbas P.W.3 while making dishonest improvement stated that about three months ago from the date of recording of his statement before the trial Court i.e. 19-1-2011 at about evening time his brother Ali Ahmed deceased went to the house of Muhammad Arif Lohar to visit him as he was ailing but he did not return for a considerable time. Muhammad Abbas complainant P.W. 3 did not mention the time of leaving his house in the application Exh.PC as well as in his statement before the trial Court while appearing as P.W.3 for the search of Ali Ahmed deceased.

25. Further Muhammad Abbas complainant P.W.3 stated in his application Exh.PC that Muhammad Noman and Muhammad Asif (since declared innocent) also gave 'Toki' blows to Ali Ahmed deceased and during the cross-examination, he stated that a 'Punchayat' was convened regarding the injured Noman and Muhammad Asif accused (since declared innocent) in which they had established their innocence and the same was accepted by them. Abdul Latif SI/I.O of this case P.W.9 stated that during investigation, Muhammad Noman and Muhammad Asif (since declared innocent) were found innocent during his investigation and complainant (Muhammad Abbas P.W.3) had accepted their innocence and tendered an affidavit in this respect. He further stated in cross-examination that on 7-11-2010 complainant (Muhammad Abbas P.W.3) made a supplementary statement before him and stated that at the time of recording of the FIR, he was worried and he wrongly mentioned two unknown persons as accused. During the investigation, Muhammad Abbas complainant P.W.3 has exonerated Noman and Muhammad Asif accused who were nominated in the FIR Exh.PC/ 1 by him with specific role of giving 'Tokies' blow to Ali Ahmed deceased and further complainant Muhammad Abbas P.W.3 got excluded two unknown accused mentioned in the FIR by him through his supplementary statement recorded on 7-11-2010.

26. The above stated facts have created serious doubt in the prosecution story and the credibility of witnesses Muhammad Abbas complainant P.W.3 and Khalid Javed P.W.4 have become doubtful. 26(sic.) Muhammad Abbas P.W.3 and Khalid Javed P.W.4 are not only closely related to Ali Ahmed deceased as stated above but they were also chance witnesses. The occurrence in this case had taken place far away from the houses of the said witnesses at the odd hours of the night and they had statedly seen the occurrence when they were in search of the deceased Ali Ahmed.

27. We have found it to be quite strange that if the appellants had to murder the deceased Ali Ahmed then they did not have to wait for the arrival of the said witnesses for starting infliction of injuries upon the deceased with Tokies. It is also noticeable that despite their claimed presence at the scene of occurrence at the relevant time, the said eye witnesses along with Zulifqar (given up P.W.) had not tried to stop the appellants from inflicting injuries upon the deceased especially when the appellants were not armed with any firearm to ward the said witnesses off or to keep them away. Reliance is placed on case titled Irshad Ahmed v. The State (2011 SCMR 1190).

28. The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not. In the present case, no other reliable evidence was brought in support of the allegation of murder against the present appellants except the statements of Muhammad Abbas P.W.3 and Khalid Javed P.W.4 which being mudded with exaggeration and doubts would not be considered of the standard to be given much credence and being not confidence inspiring would not be blindly relied upon to hold the accused guilty of the charge of murder.

29. For the foregoing reasons, the evidence of Muhammad Abbas P.W.3 and Khalid Javed P.W.4 is not reliable and same is hereby disbelieved.

30. Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime". Reliance is placed on case titled Altaf Hussain and others v. Fakhar Hussain and others (2008 SCMR 1103) in which Hon'ble Supreme Court of Pakistan has observed at page 1106 as under:- "It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime."

31. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial Court was not justified in convicting them while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradictions especially unreliable story deposed by Muhammad Abbas complainant P.W.3 and Khalid Javed P.W.4. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal Appeal No.65 of 2011 filed by Muhammad Aslam and Gulzar Ahmed present appellants is accepted and convictions and sentences awarded by the learned trial Court through judgment dated 10-2-2011 are set aside and the appellants are ordered to be acquitted of the charge in case FIR No. 481 dated 16-10-2010 under section 302/34, P.P.C. police station, Faqirwali Tehsil Haroonabad Bahawalnagar. They are directed to be released forthwith if not required in any other case. Murder Reference No.5 of 2011 is answered in NEGATIVE and death sentences of Muhammad Aslam and Gulzar Ahmed present appellants are NOT CONFIRMED. MH/M-321/L Appeal allowed.