2006 PLP 1733 (YLR)

MUHAMMD NAWAZ BHATTI, J.

This judgment shall dispose of Cr.A. No.23 and Cr. Rev. No.30 of 2003, which are against the same judgment.

2. The appellant Muhammad Saeed was convicted under section 302(b), P.P.C. by the learned Sessions Judge, D.G. Khan, vide his judgment dated 8-1-2003 in case F.I.R. No.63 dated 1-3-2000 registered under sections 302, 324, 34, P.P.C. at Police Station B-Division, D.G. Khan and was sentenced to life imprisonment. He was further directed to pay compensation amounting to Rs.50,000 to the legal heirs of the deceased which was directed to be recovered as arrears of land revenue under section 544-A, Cr.P.C. In case of default, the appellant was directed to further undergo imprisonment for a period not exceeding six months. He was also given benefit of section 382-B, Cr.P.C.

3. Facts of the prosecution case as embodied in the complaint Exh.PF prepared on the statement of Muhammad Iqbal complainant (P.W.) are that he, a tailor by profession, owner of a shop adjoining Goal Bagh Kumharan Wala, was standing on 1-3-2000 at 5-00 p.m. with Riaz Hussain alias Jugnoo, Saala of the complainant. They both were chatting. In the meantime, a person came and asked Riaz Hussain that three or four persons were standing at the Chowk of Block No.48 and were enquiring about Riaz Hussain deceased. Riaz Hussain went towards them. Soon after, the complainant Muhammad Iqbal heard commotion. He went running where Rajab Ali P.W. and Abid Hussain also came on hearing the noise. Within their sight, Sabir Hussain, Manzoor Hussain and Muhammad Ramzan took the deceased within their grip and Muhammad Saeed son of Rahim Bakhsh inflicted a Churri blow on the right side of the back of the deceased (although in Exh.PF the left side had been shown through overwriting as right side). Riaz Hussain was soaked in blood. Inhabitants of the vicinity also came there and on seeing them all the' accused fled away. Riaz Hussain was shifted to hospital on 'a motorcycle Rickshaw. Motive behind the occurrence was that all the accused had taken a house on rent which was adjacent to the house of Riaz Hussain. They were in the habit of taking electricity connection direct from the main line and pilfered the electric energy because they had no electric meter. This violated the privacy of Riaz Hussain. He forbade them and admonished as to why they climbed the roof top without prior intimation. This led to a quarrel of occurrence which took place on 1-3-2000 and caused the registration of the instant case.

4. After the investigation of the case, complete challan was sent to the Court. Charge was framed against the accused on 24-2-2001 to which they pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution examined nine witnesses.

6. Dr. Kamran Masood (P.W.3) deposed that on 1-3-2000, he had medically examined Riaz Hussian and found as under: -- "The injured was 18 years of age. He was unconscious. He was in shock and had laboured breathing. His clothes were dirty with mud. His BP was nil. Pulse was nil. Temperature was 96 diaphgram and his respirate was 35 per minute. There was a stab wound on the back right side measuring 2-1/2 c.m. Horizontally placed in the middle of chest." The injury was declared dangerous to life. Final result had to be given after the receipt of opinion from Surgeon. Duration of the injury and medical examination was 3 to 6 hours. The injury was caused by sharp-edged weapon. Exh.PD is correct carbon copy of MLG which was in his hand and bore his signatures.

7. Dr. Muhammad Khalid Tehsin (P.W.9) deposed that on 2-3-2000, he conducted the post-mortem examination on the dead body of Riaz Hussain and found as under: -- EXTERNAL EXAMINATION. It was a deadbody of youngman and was lying on the mortuary table having developed rigor mortis on the face and arm with eyes closed, bleeding from the back profusely. EXTERNAL INJURIES.

1. An injury about 2 1/2 x 1 c.m. on the back of right chest just near the vertebrae column at the level of 8th intercostals space. The injury was deep in the thoracic cavity. The margins of the wounds were sharp. No other injuries were present on the body". In his opinion, Injury No.1 was sufficient to cause death because the injury was deep one and to the vital organ of the body (right side lung). It was declared as dangerous to the life which was responsible for the cause of death. Probable time as elapsed between injury and death was twelve to fifteen hours and between death and post-mortem examination was six to eight hours. After post-mortem examination he handed over last worn clothes, post-mortem report, police documents to the police. Exh.PM is the correct carbon copy of his original post-mortem report which was in his hand and bore his signatures. Inquest report Exh.PK and application for post-mortem Exh. PN moved by Muhammad Akram S.-I./S.H.O. for post-mortem examination were signed by him.

8. Muhammad Akram S.-I./S.H.O. (P.W.8) deposed that on 1-3-2000 he had recorded statement of Muhammad Iqbal as Exh.PF. He had sent the same to the police station through Fayyaz Ahmad constable for registration of formal F.I.R. He along with other police officials remained at D.H.Q. Hospital, D.G. Khan where statement of Muhammad Iqbal had been recorded. He prepared injury statement of Riaz Hussain Exh. PG and got him medically examined. He proceeded to the place of occurrence. He inspected the spot, prepared rough site-plan Exh.PJ regarding place of occurrence. All the notes and drawing on Exh.PJ were in his handwriting and the same were signed by him. He had secured blood-stained earth from the place of occurrence and took the same into custody after having made it into a sealed parcel vide memo. Exh. PA and recorded statements of the P.Ws. under section 161, Cr.P.C. and searched for the accused. On 2-3-2000 he received 'information through Ghulam Sarwar that Riaz Hussain had succumbed to the injuries at Nishter Hospital Multan and that his deadbody was being brought to D.G. Khan, whereupon he along with other police officials went to D.H.Q. Hospital, D.G. Khan. He prepared inquest report Exh.PK and escorted the deadbody of Riaz Hussain to the mortuary for post-mortem examination. After autopsy M.O. handed over post-mortem report, last-worn clothes and other papers to him. Last-worn clothes, Shalwar P1 and Qameez P2 both blood-stained were taken into custody by him vide memo. Exh.PB which was thumb-marked by P.Ws. He recorded their statements under section 161, Cr.P.C. and deadbody of Riaz Hussain deceased was handed over to his legal heirs. He handed over last-worn clothes Shalwar P1 and Qameez P2 to Moharrir/H.C. for safe custody. On 8-3-2000 Muhammad Saeed, Sabir Hussain, Manzoor Hussain and Muhammad Ramzan were arrested. On 9-3-2000 Manzoor, Sabir and Ramzan accused were sent to judicial lock-up, whereas physical remand of Saeed accused to effect recovery of weapon of offence was obtained from Illaqa Magistrate. During interrogation Saeed accused made disclosure regarding concealment of weapon of offence. Churri P.3 was got recovered on the pointation of Saeed accused from shrine graveyard of Masoom Shah 'from cluster of `Kiker' trees on 10-3-2000 and the same was taken into possession vide memo Exh.PC after making it into a parcel. He prepared rough site-plan of place of recovery of Churri P.3 as Exh.PL. The drawing and. notes on Exh.PL were in his handwriting and the same were signed by him. He recorded statements of recovery witnesses under section 161 Cr.P.C. and handed over sealed parcel of P3 to Moharrir/H.C. for safe custody on the same day i.e. on 10-3-2000. On 11-3-2000 Saeed accused was sent to judicial lock-up. On 15-3-2000 result of Chemical Examiner Lahore in respect of blood-stained was received. On 26-3-2000, sealed site-plan Exh.PE/1-3 was prepared by Ghulam Hur Draftsman on his direction and on the pointation of P.Ws. after inspecting the place of occurrence by him. Notes in red ink on Exh.PE/1-3 were in his handwriting and the same were signed by him. He recorded statement of Ghulam Hur Draftsman under section 161, Cr.P.C. He found all the accused guilty and challaned them.

9. Muhammad Iqbal (P.W.6) is complainant of this case. He reiterated the contents of the F.I.R. Rajab Ali (P.W.5) supported the statement of the complainant.

10. Akhtar Ata constable (P.W.1) deposed that he transmitted the parcel said to contain blood-stained earth in the office of Chemical Examiner on 7-3-2000.

11. Allah Wasaya (P.W.2) is the recovery witness who testified recovery memo. Exh.PA through which the blood-stained earth was taken into possession by the I.O.

12. Ghulam Hur (P.W.4) is draftsman. He deposed that he prepared the scaled site-plan Exh.PE/1-3 in the scale of one inch equal to 40 feet.

13. Abdul Harnid H.C. (P.W.7) is, formal witness of the F.I.R. Exh.PF/1 who recorded the same on receipt of complaint Exh.PF. He was also handed over the sealed parcel said to contain blood-stained earth for safe custody in Malkhana. On 6-3-2000, he handed over the above parcel to Akhtar Ata constable for its onward transmission to the office of the Chemical Examiner, Lahore. On 10-3-2000, Muhammad Akram S.H.O./I.O. handed over him a sealed parcel said to contain blood-stained Chhurri P.3 for safe custody in Malkhana. He handed over the same to Akhtar Ata for its delivery in the office of CE on 20-3-2000.

14. The learned A.D.A. closed the prosecution case after tendering in evidence report of Chemical Examiner regarding blood-stained earth as Exh.PO, report of Chemical Examiner dated 30-3-2000 regarding blood-stained Churri as Exh.PP, reports of Serologist as Exh.PQ and Exh.PR.

15. The accused were examined under section 342 Cr.P.C. and in their statements, they denied the allegation of their involvement in the case. They also produced Muhammad Ismail, Saifullah Khan and Muhammad Saeed Bhatti as defence witnesses. Muhammad Ismail (D.W.1) deposed that there was no electric pole near and around the house which was purchased by him. Nor was around there any electric pole near the house of the deceased nor any overhead electric wire or cable passed over his house or the house of the deceased. He did not recognize the accused persons nor the said house was rented out to any of them. None of the accused had been living in the vicinity. Saifullah Khan (D.W.2) deposed that h'e was in possession of register complaints. As per Entry No.7-CC dated 12-1-1999, a complaint was lodged by Taj Muhammad son of Rahim Bakhsh regarding case F.I.R. No.298 of 1998 under section 381-A, P.P.C., a copy of the said entry from the register was Exh. D W-2/ 1 attested by him. He also brought outdoor emergency register of D.H.Q. Hospital, D.G. Khan pertaining to period of 1-3-2000 to 12-7-2000. According to record, Muhammad Riaz on 1-3-2000 in the evening shift against Sr. No.1373 was admitted to Emergency Ward by Dr. Fayyaz Karim Leghari, CMO. Attested copy of the extract thereof was Exh.DH. Muhammad Saeed 13hatti (DW-3) deposed that he also brought admission register of Emergency Ward D.H.Q. Hospital, D.G. Khan commencing from 1-1-2000 to 5-4-2001. On 1-3-2000 against Sr. No.336, Muhammad Riaz was entered in the evening shift and in column of decease there was mention of stab right chest and against the same it was mentioned that the injured was shifted to Nishter Hospital, Multan on 2-3-2000. Attested copy in this context was Exh.DJ. Learned counsel for Muhammad Saeed Appellant/accused tendered into evidence certified copy of F.I.R. No.298 dated 23-12-1998 as .Exh.DV, copy of application dated 23-3-1998 as Mark-B, copy of another application addressed to S.P., D.G. Khan dated 6-1-1999 as Mark-C, copy of application dated 8-3-2000 submitted to S.S.P., D.G. Khan as Mark-D, attested copy of N.I.C. of Javed Hussain as Mark-E, affidavit sworn by Javed Hussain as Mark-F, copy of final report regarding cancellation of case F.I.R. No.298 of the year 1998 registered at Police Station Kala against Taj Muhammad and Rafique real brothers of Muhammad Saeed accused as Mark-G. Thereafter he closed the defence evidence.

16. Learned counsel for the appellant has contended that the F.I.R. was lodged with delay; that overwriting in the complaint and the F.I.R. makes it clear that none of the eye-witnesses was present; that the prosecution evidence was rampant with discrepancies and improvements; that there was no proof as to whether the patient was admitted in the Nishter Hospital, Multan; that it was a blind murder; that the appellant has been falsely involved because the I.O. harboured grudge and ill-will towards the elder brother of the accused Muhammad Saeed and his family; that nobody saw the occurrence; that the appellant Muhammad Saeed was minor at the time of occurrence in the light of the school leaving certificate and ossification test conducted on the direction of the Court; that the injury attributed to the petitioner is single one which was not repeated; that the motive is not proved and that recovery of Chhurri does not improve the requirement of section 103, Cr.P.C.

17. On the other hand, learned counsel for the State has supported the impugned judgment and submitted that the. F.I.R. was lodged with promptitude; that the time consumed for shifting the injured to the hospital for the treatment was a natural phenomen; that testimony of the complainant cannot be discarded merely on the basis of his relationship with the deceased; that Rajab All was an independent witness and there was no reason to discredit his deposition; that the deceased was done away with a common intention and every accused took active participation in the commission of the crime.

18. I have heard learned counsel of the appellant and learned counsel for the State and also gone through the record.

19. Admittedly, the occurrence took place at 5-00 p.m. on 1-3-2000. Vide Exh.DL the deceased was brought to the hospital in an injured condition at 6-05 p.m. on the same day. There was sufficient time to report the matter to the police. The complainant party probably took the matter as a casual activity, and not a serious pursuit. Neither any first aid was given to the deceased before 8-00 p.m. as admitted by P.W.3 during cross-examination nor the complainant party cared to inform the police about the occurrence. At 8-00 p.m. the police brought the deceased in an injured condition to the hospital and according to Exh.PD the deceased was medically examined by the doctor on duty. So it is proved that the matter was reported to the police with a delay of three hours and A thirty five minutes.

20. As far as the motive is concerned, the quarrel which took place between the appellant and the deceased Riaz Hussain was not admitted by the complainant (P.W.6) himself as according to him, he did not produce any witness in that connection. Even P.W.5 admitted that no case regarding theft of electricity was registered against the appellant. The I.O./P.W.8 also admitted that he had not investigated into the motive incident. No resident of the Mohallah was examined to prove the incident either before the police or the Court. The appellant Muhammad Saeed got examined Muhammad Ismail who was the owner of a residential house in Block No.48 D.G. Khan which was adjacent to the house of the deceased. He deposed that there was neither electric pole near and B around the said house nor the said house was ever rented to Muhammad Saeed. Therefore, I am of the view that the motive is shrouded in mystery and the same could not be proved by the prosecution.

21. In the F.I.R. Exh.PF, it was stated that the appellant Muhammad Saeed inflicted a Chhurri blow on the right side of the back of the deceased but left side had been shown through overwriting as right side. This overwriting was made after the post-mortem examination. Had P.N.S and P.W.6 been present at the time of occurrence, they would have reported the matter according to the post-mortem examination report. When they came to know at a later stage that injury was on the right side of the back, they resorted to overwriting in collusion with the police. This overwriting and making left to right speaks volume that none of the eye-witnesses was present at the spot. Even otherwise the statement of the complainant ( (P.W.6) cannot be believed as he is closely related to the deceased and is an interested witness. It also appears from the record that the occurrence took place near Eid-ul-Azha when there is rush of customers at the shop of the complainant and the complainant (P..W.6) was not expected to be present at the spot at 5-00 p.m. particularly when he himself admitted that in the days of rush of customers he used to come back from his tailoring shop at 10/11-00 p.m.

22. As far as recovery of Chhurri P.3 is concerned, it is admitted by Muhammad Akram S.-I./S.H.O./I.O. (P.W.8) that the graveyard from where Chhurri was recovered was adjoining the Police Station Division. It was not possible for Muhammad Saeed appellant to bury Chhurri P.3 in the graveyard and that too in the broad-daylight. From graveyard people pass through but no witness from the public was associated with the recovery proceeding, produced by the prosecution. So it is a clear violation of the provisions of section- 103, Cr.P.C. As such the prosecution has failed to prove the recovery.

23. As regards the age of the appellant, learned counsel for the appellant has relied upon Exh.DT where the date of birth of the appellant is 21-4-1982 and according to the birth certificate, the appellant was not adult at the time of occurrence and he was below the age of 18 years. I agree with the contention of learned counsel for the appellant as the birth certificate is an authentic document.

24. From the discussion made above, I am of the view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. It is the duty of the prosecution to prove its case against the accused to the hilt and the accused has only to create doubt in the prosecution case. It is also a cardinal principle that benefit of every doubt must go to the accused. Relying upon Wazir Muhammad v. The State (1992 SCMR 1134), Daniel Boyd (Muslim Name Saifullah) and another v. The State (1992 SCMR 196), Sikandar v. The State (PLD 1963 SC 17) and Safdar Ali v. The Crown (PLD 1953 Federal Court 93), I give benefit of doubt to the appellant Muhammad Tufail and accept this appeal. In the result, the conviction and sentence of the appellant recorded through the impugned judgment is set aside and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. H.B.T./M-208/L Appeal accepted.