1994 P Cr (PLP)

SAJJAD AHMED SIPRA, J.

The present criminal appeal calls in question the legality and propriety of the judgment, dated 8-11-1989 passed by the Additional Sessions Judge, Faisalabad, whereby he sentenced both the appellants to death on 2 counts under section 302/34, P.P.C. for having caused the death of Abdur Rauf and Umer Hayat and had further imposed fine of Rs.10,000 on each count, or in default thereof 2 years' R.I. on each count with the further direction that half of the fine on realization shall be paid to the legal heirs of both the deceased. By the same judgment, the co-accused Ashiq and Shaukat were acquitted. The present judgment shall also dispose of the connected Murder Reference No.7 of 1990. Criminal Revision No.421 of 1990 filed against the acquittal of the co -accused named above was dismissed vide order, dated 15-1-1991.

2. The brief facts of the case are as follows:-- According to the F.I.R. Exh.PA./1 recorded on the statement of Mazhar Abbas (P.W.6) i.e. Exh.P.A., on the fateful day at Peshiwela while the complainant alongwith Abdul Rauf was on his way to Chak No.433/G.B. to see Zabta son of Karim, and had reached Head Bahlak, they saw Akbar and Riaz, both sons of Abdul Aziz appeared with their guns, raising Lalkara that they shall teach a lesson to them for having murdered their father Abdul Aziz; whereupon Umer Hayat Beldar, present at the Canal Bridge and the complainant implored the accused to refrain from fighting but instead the accused warned them that if they tried to rescue Abdul Rauf, they shall also be killed. It was further stated therein that the accused Akbar and Riaz fired a shot each, one after the other, at Umer Hayat hitting him on left thigh and as a result he fell down beside a Shisham tree, and that the complainant and his brother Abdur Rauf managed to run and take refuge behind a Shisham tree on the eastern side of the canal bridge, and that the accused pursued them and that Riaz accused fired from his gun, Abdur Rauf fell having been hit on the left eye. The complainant further stated that on his and Umer Hayat's hue and cry, Ilyas and Dost Muhammad were attracted to the spot and saw the occurrence as they were passing from nearby. It was further stated therein that Abdur Rauf had succumbed to injuries on the spot, whereas Umer Hayat was brought to the hospital in an injured condition who later on expired. It was further alleged by the complainant that the murder of Abdur Rauf had taken place on the instigation of Ashiq and Shaukat.

3. The motive was stated to be the revenge for the murder of Abdul Aziz, father of the accused, one and half years ago, in which case the deceased Abdur Rauf alongwith four others was challaned but was on bail.

4. The accused having denied the charge under section 302/34/109, P.P.C. were tried, convicted and sentenced as stated above, vide the impugned judgment.

5. To support its case, the prosecution had examined 14 witnesses. P.W.1, Muhammad Tufail, M.H.C. had testified to the effect that he had draft A the formal F.I.R. (Exh.P.A./1) on the receipt of a written complaint, Exh.P.A. on 8-8-1988 while posted at Police Station Bahlak, and that on 17-8-1988 he had handed over the four scaled parcels,to P.W.2, Ali Ahmed Constable for submitting the same to the office of the Chemical Examiner, Forensic Science Laboratory after the same had been handed over to him on 14-8-1988 by the Investigating Officer (P.W.14), and that two of the said parcels contained empties, whereas the other two contained blood-stained earth. Further deposed that on 30-8-1988 the I.O had handed over two sealed parcels which contained gun, and that on 3-9-1988 he had entrusted the same to Ali Muhammad Constable (P.W.2) for transmission to the Forensic Science Laboratory. P.W.2, Ali Muhammad F.C. testified to the same effect and had stated that he had delivered the said parcels as directed i.e. on 17-8-1988 and 3-9-1988, and had further deposed that he had taken the complaint, Exh.P.A. to the police station, and that he alongwith Khan Muhammad, F.C. (P.W.4) had taken the dead bodies of both the deceased to Civil Hospital, Tandlianwala for their post-mortem examination and that he had attested the memo. Exh.P.B. in respect of the last-worn clothes of the deceased Umer Hayat i.e. Shirt P.1, Chadar P.2 and Bunyan P3, all blood-stained, on being handed over the same by the doctor. During his cross-examination, conceded that he had deposited the sealed parcels on 21-8-1988 as the concerned offices at Lahore were closed and had come back and redeposited the said parcels for those three days with the Moharrir Head Constable. He had further stated that he had taken the two dead bodies from Lasharian Chak No.435/G.B.

6. P.W.3, Khizar Hayat, Patwari testified that he had prepared the site plan, Exh.P.C. and its copy Exh.P.C./l. P.W.4, Khan Muhammad F.C. deposed that on 9-8-1988 he had got conducted the post-mortem examination of the dead body of Abdur Rauf and that thereafter, the last-worn clothes of the said deceased, Chadar P.4, shirt P.5 were produced by him before the I.O. and the same were taken into possession vide memo. Exh.P.D. duly attested by him. During his cross-examination he had stated that he had left the police post for the place of occurrence at about 2/3 p.m. on that date alongwith the I.O. as the information had been received at the police post regarding the occurrence and that many relatives of the deceased were present at the spot.

7. P.W.6, Mazhar Abbas and P.W.7, Dost Muhammad were the eye witnesses of the occurrence, Muhammad Ilyas having been given up as unnecessary. P.W.6, Mazhar Abbas, the complainant of the case in question supported the version recorded by him in his complaint but, however, made an improvement to the effect that Akbar accused had given a butt blow on the back of the head of Abdur Rauf deceased and that thereafter Riaz accused had fired at Abdur Rauf deceased hitting him at his left eye and was duly confronted with Exh.P.A., where it had not been so recorded. During his cross examination, he had further conceded having long-standing enmity with the accused. He had further stated that he had left his bicycle on the spot and had proceeded on foot to the police station which was at a distance of six miles from there, and that the sup had not yet set when he had met the police. He had denied the suggestion of not being present at the place of occurrence and had further been confronted with the F.I.R. Exh.DA. when he had denied having made any other statement before the police except Exh.P.A. or to have stated in Exh.DA. that accused Shaukat had been named by mistake. P.W.6, Mazhar Abbas and P:W.7, Dost Muhammad testified to the effect that on the day of occurrence i.e. 8-8-1988 he alongwith Ilyas (given up) was returning from Jhok Ditta after collecting some medicine, and that at the Bridge Head Bahlak he had seen Abdur Rauf deceased and his brother, Mazhar Abbas (P.W.6) coming on bicycle from the eastern side, and that the accused Akbar and Riaz were coming on the western side of the bridge with their guns and had appeared there and addressing them, stated that they shall take the revenge of their father's murder and that Umer Hayat had proceeded ahead and requested them not to fight, but both of them had fired at Umer Hayat, hitting on his left thigh and that, thereafter, Abdur Rauf and Mazhar Abbas had run towards the eastern side of the bridge but Akbar accused had chased Abdur Rauf, taking shelter behind the Shisham tree, and hit him at the back of his head with the butt of his gun and that at that time the deceased was standing and was taking shelter but he had fallen on the ground and died thereafter when Riaz accused fired and hit him on his left eye. During his cross-examination, he was confronted with the statement, Exh.P.B., where he had stated that the shot fired by Riaz accused had not hit Umer Hayat. He further stated during his cross-examination that the Investigating Officer had reached the place of occurrence after the sunset and that Umer Hayat deceased had received the fireshot on the Service Road, and that he had fallen there. P.W.8; Sarfraz Ahmed, Head Constable had produced the F.I.R., Exh.P.G. i.e. F.I.R. No.72/87 and had deposed that it was drafted by him, but had conceded during his cross-examination that it was not attested by him nor that the original F.I.R. was in his hand, or before him. P.W.9, Mir Muhammad was the attesting witness of Exh.P.H., whereby the gun P.6 was taken into custody after Muhammad Akbar accused had led to its recovery from his house, and the Exh.P.I. whereby the gun P.8 had been taken into possession after its recovery by the accused Riaz from his house on the same day. He had further deposed that the guns were sealed into two separate parcels. He had conceded that he was neither a Lambardar nor he was a member of the Union Council and that there were many houses around the house of Riaz accused, but denied that the recovery was not effected in his presence. P.W.10, Muhammad Nawaz Khan stated that he had identified the dead body of the deceased Abdur Rauf, whereas P.W.11 Ali Sher deposed that he had identified the dead body of Umer Hayat, both the identifications having been done at the time of post-mortem examination. P.W.12, Nemat Khan was the attesting witness of the Exh.P.J., whereby the blood-stained earth from the place of the murder of Abdur Rauf deceased was collected, Exh.P.K., whereby two crime empties (Exh.P.9/1-2) from the place of the murder had been taken into possession, Exh.P.L., whereby blood-stained earth from the place where Umer Hayat was murdered had been taken into possession and memo. Exh.P.M. whereby three empties i.e. Exh.P.10/1-3 had been taken into possession from the place of occurrence. He had further deposed that separate sealed parcels were made in this respect of the said recoveries, and that Mujeeb Ullah (not produced) had also attested the said exhibits. P.W.13, Muhammad Sharif was the witness against the acquitted co-accused for the offence under section 109, P.P.C.

8. P.W.5, Dr. Muhammad Hayat had performed the post-mortem examination of the deceased Umer Hayat, aged 30/32 years and had deposed as follows: -- The dead body was of a young male with eyes and mouth closed. He was clad in Oameez, Chadar of Khaki colour, Bunyan of white colour. Rigor mortis and post-mortem staining was present on the dead body. The following external injuries were present on the dead body: -- (1) 8 fire-arm wounds of entrance in an area of 12 c.m. x 10 c.m. on front and inner side of left thigh in lower 1/3rd region. One of them is 3 c.m. x 2 c.m. Rest are all of the size of 0.5 c.m. x 0.5 c.m. with burnt and blackened margins. On. probing each wound is passing through and through making 8 exit wounds in an area of 11 c.m. x 9 c.m. on outer and back of left thigh in lower 1/3rd region. Exit wounds were of the same size as entrance wounds. Corresponding cuts on shirt and Chadar were present. On opening the wound the left femur bone was fractured in pieces. Clotted blood was present in the wound. The skull was opened. Brain was healthy and pale. Thorax cavity was opened. All organs were healthy and pale. Heart was empty. Abdominal cavity was opened. All organs were healthy and pale. Stomach contained about two ounces semi-solid fluid. Bladder was full of urine and was healthy and pale. In his opinion, death in this case was due to shock and haemorrhage, caused by injury No.l, which was caused by fire-arm weapon. Injury No.l was ante-mortem and was sufficient to cause death in ordinary course of nature. Time between injury and death was within about six hours and time between death and post-mortem examination was within 12 to 16 hours. Exh.P.E. was the correct carbon copy of his post-mortem examination report and Exh.P.E./1 was the sketch of injury which was also in his hand and signed by him.

9. On the same day at 8-00 a.m. he conducted the post-mortem examination on the dead body of Abdul Rauf alias Roofa son of Ahmed Yar, caste Baloch, resident of Chak No.435/G.B., Police Station Bahlak brought to him by Khan Muhammad Constable No.3189, Police Station Bahlak and identified by Abbas Khan son of Amir and Muhammad son of Mumtaz Taung, Caste Baloch resident of Chak No.435/G.B. and found as under: -- The dead body was of a middle-aged man aged about 40 to 45 years. His mouth was closed. Left eye was not present. Right eye was protuberated and opened. He was clad in light blue Qameez and white Chadar. Rigor mortis and post-mortem staining was present. Following external injuries were present on the dead body: - (1) Fire-arm wound of entrance 6 c.m. x 5 c.m. with blackened and burnt margins in the left orbit. Left eye was damaged and was not present in the left orbit. The wound was through and through after damaging and passing through the frontal bone passing through the brain tissues making an exit wound 8 c.m. x 6 c.m. on right side of the head 1 c.m. above the right ear. Corresponding bone was fractured in pieces. Brain tissue was coming out through the exit wound. (2) Contusion with swelling 5 c.m. x 4 c.m. on back of the head. Skull bones fractured in entrance wound as well as in the exit wound. Membranes and brain tissues were damaged under injury 130.1. Clotted blood, fractured pieces of bones were present in the skull cavity. Thorax cavity was opened. All organs were healthy and pale. Clotted blood was present in both the cavities of heart. Abdominal cavity was opened. All organs were healthy and pale. Stomach contained 2 ounces of semi-solid. fluid. Bladder was full of urine. In his opinion the death was due to shock and haemorrhage and damage of brain tissues, caused by injury No.l. Injury No.l was grievous caused by fire-arm weapon. It was ante-mortem and was sufficient to cause death in the ordinary course of nature. Injury No.2 was also ante-mortem and caused by a blunt weapon. Time between injuries and death was immediate and between death and post-mortem examination was about within 24 hours. Exh.P.F. was the carbon copy of his post-mortem report, which was in his hand and signed by him and Exh.P.F./1 was the sketch of the injuries.

10. Thereafter, the prosecution had tendered in evidence Exhs.P.T., P.U. and P.V. i.e. the report of the Chemical Examiner, Serologist and that of the Forensic Science Laboratory respectively and had closed its case.

11. The appellants in their statements under section 342, Cr.P.C. had stated that they were innocent and that they had been involved falsely in the case due to old enmity and feud.

12. We heard the learned counsel for the appellants, the State and the revision-petitioner and perused the record of the case with their assistance.

13. The learned counsel for the appellants argued that the occurrence had not been witnessed by any one and in this respect pointed out that the statement of the P.W.4, Khan Muhammad contradicts the complaint Exh.PA. in respect of the time of the occurrence and that the statement of the complainant, P.W.6, Mazhar Abbas to the effect that although he was on a bicycle at the time of the alleged occurrence, yet he took off for the police station to lodge the complaint on foot, raises serious doubts about his presence at the spot; and the possibility of the complaint having been lodged after due deliberation cannot be ruled out under the circumstances. Further submitted that the statements of P.W.6, Mazhar Abbas, complainant and P.W.7, Dost Muhammad are not worthy of credence as they had made dishonest improvements before the trial Court and that they had further contradicted themselves in respect of the manner and mode of the injuries sustained by the deceased. Further pointed out that although it was a case of the prosecution that Umer Hayat deceased had been taken to the Rural Health Dispensary, Jhok Ditta, yet there was nothing on the record to support the same and that, in fact, the post-mortem report being silent in respect thereof contradicts the same, and in this respect further pointed out that P.W.2 had specifically stated that he had taken the dead bodies to the hospital from the village of the deceased and that no mention has been made of Umer Hayat deceased having been taken to the Rural Health Dispensary, and that as the said deceased had died after 6 hours, therefore, further argued that he could have been saved by being rendered timely medical help, which was only possible if there were persons present at the time of the alleged occurrence. Further argued that the crime empties had not been mentioned in Exhs.P.O. and P.S. and furthermore their retention by the P.W. 14, Investigating Officer for a week without explanation renders their recovery of doubtful value. Further submitted that the prosecution version in respect of the occurrence is highly improbable and, therefore, not believable as in view of the existing blood feud between the parties, the complainant, P.W.6, the real brother of the deceased Abdur Rauf, would not have been spared when he was entirely at the mercy of the accused/enemies.

14. On the other hand, the learned counsel for the state argued that the F.I.R. had been lodged promptly and that the names of the accused, receipts of the injuries and the motive had been stated without ambiguity; and that the recoveries of weapons and empties and reports in respect thereof duly support the prosecution version. Whereas, the learned counsel for the revision petitioner had contended that the ocular and medical evidence corroborate each other and that P.W.7, Dost Muhammad was an independent witness, not being related to the complainant party and without enmity with the accused. Further argued that there was no doubt about the identity of the accused and their participation in the crime charged.

15. We have given our anxious considerations to the contentions raised by the learned counsel for the parties. We are constrained to observe that there is material contradictions in respect of the receipt of information of the alleged occurrence by the police. In this respect, it may be pointed out that whereas P.W.4, Khan Muhammad had stated that he alongwith the Investigating Officer had left for the place of occurrence at 2/3 p.m. on the fateful day after information had been received in respect thereof, the complainant, P.W.6, Mazhar Abbas had lodged the report at 5-45 p.m. Furthermore, it is most intriguing that the complainant, P.W.6 had opted to come to the police station on foot while it is his own case that at the time of occurrence he was riding a 8 bicycle. Similarly, the said P.W.6 had contradicted himself materially in respect of the mode and manner in which the injuries had been caused to the two deceased, i.e. whereas he had stated in his complaint, Exh.PA. that both the accused had fired one shot each, hitting deceased Umer Hayat on his left thigh and that Riaz accused had fired and hit Abdul Rauf deceased in the left eye, after they had taken shelter behind a Shisham tree on the east side of bridge, but at the trial he had come up with a different version which was to the effect that he and Abdul Rauf deceased had taken shelter behind a Shisham tree nearby and that Akbar accused had hit the said deceased on the back of his head with the butt of his gun whereafter Riaz accused had fired, hitting him on his left eye. P.W.7, Dost Muhammad, the other eye-witness of the occurrence had also made improvements in his testimony before the learned trial Court thus contradicting himself. In addition thereto, the absence of any evidence to prove that the deceased Umer Hayat had been taken to the Rural Health Dispensary at Jhok Ditta for medical help creates serious doubts about their. presence at the spot. Furthermore, P.W.6's testimony otherwise becomes of doubtful veracity as he had recorded supplementary statements, DA. and D.B. before the police after the registration of the complaint changing his earlier p statement/complaint and had further contradicted himself by disowning the said supplementary statements before the learned trial Court. In this respect, his supplementary statement was to the effect that he had named Shaukat, the acquitted co-accused by mistake, totally discrediting his testimony. We have further noted that whereas it is the case of the prosecution that the deceased Abdul Rauf was killed on the eastern side of the canal, yet, the complainant, P.W.6, Mazhar Abbas had stated at the trial, as pointed out earlier, that he was killed while both of them had taken refuge behind a Shisham tree standing nearby, thus failing to support his own earlier version and that of the prosecution to the effect that the said deceased had been killed after he and the said complainant P.W. had crossed over to the eastern side; and that such a flaw in the prosecution evidence raises serious doubts about its case against the appellants. Therefore, in view of the discrepant nature of the prosecution evidence, highlighted above, we hold that the prosecution had failed to prove its case beyond reasonable doubt against the accused.

16. In pursuance to the above discussion, while extending the benefit of doubt to the appellants, the present criminal appeal is hereby allowed and the impugned judgment is accordingly set aside. Resultantly, the appellants stand acquitted of all the offences charged and they shall be released forthwith, if not required to be detained in any other case.

17. The murder reference is answered in negative accordingly. N.H.Q./R-121/L Appeal accepted.