2005 PLP 1770 (YLR)

IJAZ AHMAD CHAUDHRY, J.-- This judgment will dispose of Murder Reference No.484, of 2001 sent by the learned trial Court for the confirmation of death sentence of Bashir Ahmad and Criminal Appeal No.500 of 2001 filed by said Bashir Ahmad against his conviction as both have arisen out of the same judgment dated 11-7-2001 passed by the learned Additional Sessions Judge, Vehari, whereby the appellant has been convicted under section 302(b), P.P.C. and sentenced to death with a direction to pay Rs.50,000 to the legal heirs of the deceased as compensation and in default thereof to further undergo R.I. for six months. However, Nawab Din and Falak Sher co -accused were acquitted.

2. The occurrence in the present case took place on 29-12-1997 at about 3-30 a.m. in a open field situated in Chak No. 186/EB 10 miles away from Police Station, Saddar, Vehari. Statement (Exh.P.F.) of Muhammad Nawab (P.W.6) father of Ghulam Farid deceased was recorded by Riaz Ahmad, S.-I./S.H.O., (P.W.11) at 8-00 a.m. on the basis of which formal F.I.R. (Exh.P.F./1.) was lodged at Police Station by Nasir Khan A.S.-I. (P.W.8).

3. The brief facts of the prosecution as unfolded in the F.I.R. (Exh.P.F./1) are that the complainant was resident of Chak No. 186/EB and had constructed Bheni for the purpose of residence. On the night of occurrence complainant along with his son Ghulam Farid deceased, Khuda Bakhsh and Allah Dad his brothers was sleeping in their house. At 3-30 a.m. due to the barking of the dogs they woke up and when came out of their rooms saw that three persons were standing towards East of the Bheni. In order to catch hold of them the complainant along with, his son Ghulam Farid and brothers Khuda Bakhsh and Allah Dad ran towards them. After covering a distance of two acres from their Bheni Ghulam Farid caught hold of Falak Sher (acquitted accused). Bashir Ahmad appellant was armed with .12 bore gun and Nawab acquitted accused was armed with pistol. Nawab, who was armed with pistol raised a Lalkara and asked Bashir appellant to kill Ghulam Farid on which Bashir Ahmad fired with his gun from a close range hitting Ghulam Farid on left side of his chest who fell down on the ground and died at the spot. On their hue and cry Muhammad Akram neighbourer also attracted to the spot. According to the complainant Bashir Ahmad, Nawab and Falak Sher were their relatives and had been identified at the spot by them.

4. The motive behind the occurrence was alleged that the accused party had been demanding the hands of Mst. Shahnaz daughter of the complainant which was denied and due to this reason on the night of occurrence they had come at the spot in consultation with each other to abduct Mst. Shahnaz and murdered his son Ghulam Farid through firing.

5. After recording the statement of Muhammad Nawab (P.W.6), Riaz Ahmad, S.-I./S.H.O. (P.W.11) immediately proceeded to the spot, prepared the injury statement (Exh.P.C.) and inquest report (Exh.P.D.). Then he dispatched the dead- body of Ghulam Farid deceased to the Mortuary, inspected the spot and prepared the rough site-plan Exh.P.L. He also took into possession blood-stained earth vide Memo. Exh.P.G. and pistol P.8 along with six live bullets P.9/1-6 from the spot vide memo. Exh.P.H. Also took into possession woollen Chadar P.11, Cap P.10 and support of gun P.12 from the spot vide memo. Exh.P.J.

6. On 16-1-1998 said Riaz Ahmad, S.-I./S.H.O. arrested Bashir Ahmad appellant and Falak Sher acquitted accused. Bashir Ahmad appellant led to the recovery of .12 bore gun (P.5) along with one empty cartridge P.6 and 5 live cartridges P.7/1-5 from his house which were taken into possession vide memo. Exh.P.E. He got prepared the site-plan Exh.P.K. and Exh.P.K./1 from Patwari Halqa and after completing the investigation submitted the report under section 173, Cr.P.C. in the Court.

7. After the receipt of the challan of the case the learned trial Court summoned the accused, supplied them copies of the documents required under section 265-C, Cr.P.C. framed the charge and on their denial the prosecution in order to prove the guilt of the accused produced 11 witnesses. P.W.3, Dr. Muhammad Aslam, Medical Officer, D.H.Q. Hospital, Vehari, had conducted the post-mortem examination of Ghulam Farid deceased while the ocular account was furnished by Muhammad Nawab, P.W.6 and Khuda Bakhsh, P.W.7. The other material witness produced by the prosecution was Riaz Ahmad, S.-I/S.H.O., P.W.11, who had investigated the case and remaining witnesses are of formal nature. The accused in their statements under section 342, Cr.P.C. denied the allegations and claimed innocence. On a question that "Why this case against you and why the P.Ws. have deposed against you?" the appellant made the following reply;-- "Due to enmity and suspicion.

In fact it was an unseen occurrence and the P.Ws. have deposed against me due to ulterior motive and with mala fide intention." He also replied to Question No.10 as under:-- "I am innocent. As submitted earlier, I have been falsely involved in this case. It was a foggy night and the deceased was murdered by' some unknown person." The appellant also produced in his defence Mumtaz as D.W.1 and Zafar Iqbal as D.W.2, who stated that it was a blind murder and closed his evidence.

8. The learned trial Court has passed the impugned judgment of conviction and sentence after hearing both the parties which is being assailed through this appeal and Murder Reference was sent by the learned trial Court for confirmation of death sentence of Bashir Ahmad appellant.

9. Learned counsel for the appellant contends that it was a blind murder and due to enmity the appellant has been falsely implicated in the present case. It is further contended that P.W.6, Nawab is the father of Ghulam and deceased while Khuda Bakhsh P.W.7 is the brother of Nawab and real uncle of Ghulam Farid deceased, who being interested witnesses are not worthy of reliance without any corroboration by some independent piece of evidence, which is lacking in the present case. According to him, the gun and empty were sent to the Forensic Science Laboratory together on the same day and the report thereof does not attach any sanctity and cannot be used as independent corroboration to the ocular account. It is also contended that the motive could not be proved as there were contradictions in the statements of P.Ws.6 and 7 on this point and P.W.11, Riaz Ahmad, S.-I. during investigation had found that the motive was baseless. 1t is next contended that admittedly the occurrence had taken place in a dark foggy night and no source of light was disclosed by the prosecution witnesses to identify the real culprits at the spot, whereas the complainant had admitted that there was no light in the Bheni or on the place of occurrence but the complainant had improved his statement by stating for the first time in the witness-box that he had seen the incident as he had a torch in his possession which was never produced before the police during investigation. It is also contended that the story narrated by both the eye-witnesses regarding catching hold of Ghulam Farid deceased by Falak Sher for 10 minutes whereafter he was fired at by the appellant at the alleged instigation of Nawab to fire at Ghulam Farid was disbelieved by the learned trial Court, while acquitting them. It is further contended that the medical evidence is in contradiction with the ocular account regarding the distance from which the shot was fired. It is also contended that it was a blind murder and the documents prepared at the time of spot inspection do not contain the names of the accused. He has also pointed out that even in the site-plan Exh.P.L. prepared by the Investigating Officer it was not shown that as to where the accused were standing or from where shot was fired at the deceased and the names of the accused were also not mentioned in the site-plan. It is further contended that the prosecution witnesses are not trustworthy and they narrated a false story. It is lastly contended that during cross-examination on the eye witnesses, the defence has been able to create sufficient doubt in the prosecution story, which being improbable is not believable and the appellant deserves acquittal.

10. Learned State Counsel on the other hand opposes this appeal on the ground that the appellant and the complainant party are closely related to each other and there were no chances of false implication or substitution of the appellant by letting off the real culprit as there was no previous enmity between the parties. According to him the F.I.R. was lodged immediately after the incident and the appellant was the only accused, who had fired at the deceased, when he was chased by the deceased and the witnesses.

11. After hearing the learned counsel for the parties in open Court this appeal was accepted through short order and following are the reasons therefor.

12. The prosecution case mainly rests on ocular account, medical evidence, motive and recoveries of crime empty from the spot and the weapon of offence from the appellant.

13. To prove the ocular account the prosecution examined Nawab Din complainant, P.W.6 and Khuda Bakhsh, P.W.7, who are real brothers inter se and Ghulam Farid deceased was son of the complainant P.W.6. As per prosecution awn version the occurrence took place during dark hours of cold night of December, 29, 1997 at 3-30 a.m. when the atmosphere was also foggy, at a distance of two acres from the Bheni of the complainant. As such the occurrence did not occur at a place, where the prosecution witnesses should be present as a usual course and the first question to be determined by us is whether the eye witnesses were present at the spot and had seen the occurrence.

14. In order to prove their presence at the spot, both Nawab Din complainant, P.W.6 and Khuda Bakhsh, P.W.7 stated that when they came out of their rooms with Ghulam Farid deceased on the barking of the dogs they found three persons present there, who were chased by them and at a distance of 2 acres from the Bheni Ghulam Farid deceased caught hold of Falak Sher (acquitted accused) and the other acquitted accused, namely, Nawab while armed with pistol raised a Lalkara to Bashir Ahmad appellant, who was armed with .12 bore gun to kill them with firing. Thereupon from a very close range he fired at Ghulam Farid deceased hitting in the chest, who fell down and died at the spot. No source of light was given by the P.Ws. to identify the assailants in the F.I.R. or their examination-in-chief at the trial. Admittedly the place of occurrence was not electrified. However, during cross -examination P.W.6 made improvement that he was having a torch and in the light of the same the assailants were identified, but no such torch was ever produced by him before the Investigating Officer during the investigation. Moreover, chasing of the assailants, who were armed with firearm, by the P.Ws. along with the deceased just after seeing them present outside their rooms in the Bheni without taking any weapon, who, according to the eye witnesses, were inimical towards them on the refusal of the complainant to give hand of his daughter, namely, Mst. Shahnaz and they had come there to abduct her is not believable. Even otherwise according to the P.Ws. they had been chasing the assailants from the fields where cotton crop was sown and that was about four feet height. In such condition the chasing of the assailants by the P.Ws. and the deceased freely was not possible. P.W.6 during cross-examination explained that both the P.Ws. and the deceased had been sleeping in different rooms and first of all he woke up on barking of the dogs and on hearing his cries after 2/3 minutes the others came out of their rooms. First of all the identification of the assailants during dark night, when there was also no moon in the sky and the assailants were at a distance of 10/15 karms as per complainant's own version, was not possible and secondly when the assailants had already started fleeing who otherwise had allegedly come there while variously armed to abduct the daughter of the complainant, there was hardly any justification for the P.Ws. to chase them as both the parties were related to each other and complaint could be made against the appellant and others to the elders of the family in the morning.

15. During cross-examination P.W.6 also explained that Ghulam Farid deceased had been catching hold of Falak Sher acquitted accused at the spot for about 10 minutes and thereafter the appellant had made fire at him. It is strange that if the P.Ws, were present there and they had been chasing the assailants, what had restrained them to intervene when the deceased was closely related to them, during such a long period which was against the normal human conduct. Even otherwise if there was any motive, that was against the complainant himself, who had refused to give the hand of his daughter to the accused party and it does not appeal to mind that he remained present at the spot while witnessing the occurrence, but no injury was caused to him. It is also unbelievable that if the deceased had been catching hold of Falak Sher (acquitted accused) how the appellant dared to fire at him as it could also be harmful to his companion.

16. After perusal of the evidence on record, we are satisfied that both P.Ws. 6 and 7 were not present at the spot at the relevant time, but Ghulam Farid deceased was killed by someone outside the Bheni of the complainant during odd hours of night and on finding the dead body lying there false story was cooked up and the appellant along with others was involved due to suspicion.

17. The conduct of the Investigating Officer during investigation also does not seem to be above-board which also casts doubt in the prosecution story. Immediately after registration of the F.I.R. he inspected the spot and prepared rough site-plan Exh.P.K. but did not mention the names of the accused therein and the places where they were standing at the time of the alleged occurrence, although the places from where the P.Ws. claimed to have identified them were duly shown. Similarly the recovery memo. (Exh.P.A.) of pellets and last worn clothes of the deceased, recovery memo. (Exh.P.G.) through which blood-stained earth was secured and recovery memo. (Exh.P.1.) whereby Chadar and Cap etc. were taken into possession at the spot do not contain names of airy of accused and the relevant spaces thereof were left blank and remained so when those were exhibited in evidence, whereas the remaining recovery memos, which were prepared later on during the investigation duly contain names of the respective accused. All this lends support to our view that it was a blind murder and it was not sure as to who had committed murder of Ghulam Farid deceased and that is why the names of the accused were not mentioned in the rough site plan (Exh.P.K.) as well as recovery memos. (Exhs.P.A., G. and J) which were prepared just after recovery of the dead body. Therefrom it can also be inferred that the F.I.R. was registered after preliminary investigation, with due deliberation and concoction of prosecution story while introducing close relatives of the deceased as eye-witnesses, who in the facts and circumstances of the present case are Held to be interested witnesses and their oral statements cannot be relied upon to maintain conviction against the appellant for the charge of capital sentence unless those are corroborated by some independent piece of evidence, which is lacking in the present case.

18. The ocular account is also in contradiction with the medical evidence as according to both the P.Ws. the appellant had made fire at the deceased from a very close range, which story otherwise appears to have been cooked up to prove identification of the assailant during odd hours of dark foggy night, but the doctor (P.W.3) did not observe any blackening on the injury during the post-mortem examination. The description of the injury noted by the doctor is as under:-- "A fire-arm wound of entry involving an area 15 c.m. x 10 c.m. on front of left chest starting just close to left nipple. A central wound measuring 3 c.m. x 2 c.m. x depth not probed surrounded by multiple wounds each measuring 0.5 c. m. x 0.5. c. m." During cross-examination the doctor stated that the injury could be caused from a distance of 15 yards.

19. The motive narrated in the F.I.R. was that the hand of Mst. Shahnaz daughter of the complainant was demanded by the accused party which was refused and in order to abduct her, this occurrence had taken place, which was further improved in their statements by both the witnesses by stating that the hand of Mst. Shahnaz was demanded for Muhammad. Sarwar real maternal uncle of the appellant but this story was miserably shattered. P.W.6 during cross-examination was duly confronted with his earlier statement regarding the name of Muhammad Sarwar, who had been asking the hand of Mst. Shahnaz for the last about ten years, but otherwise stated that Mst. Shahnaz was engaged with Manzoor after the present occurrence and in exchange thereof the complainant firstly engaged Mst. Faiz Bibi daughter of Khuda Bakhsh P.W.7 with the deceased. She was subsequently married with another son of the complainant. The above-said Manzoor is son of Khuda Bakhsh P.W.7. The complainant claimed that the accused had been demanding the hand of Shahnaz Mai for their Mamoon for about 10 years and according to him the accused had ten years back motive. On the other hand P.W.7 Khuda Bakhsh during cross-examination explained that Mst. Shahnaz Mai was 12/13 years of age at the time of occurrence and he also admitted that Mst. Shahnaz Bibi was betrothed with his son Manzoor about 6/7 years before the occurrence. This means that Mst. Shahnaz Bibi was aged about live years at the time of her engagement with her cousin Manzoor son of Khuda Bakhsh P.W.7, while Sarwar who is Mamoon of the appellant as well as co-accused Nawab and closely related to Falak Sher (acquitted accused) according to P.W.7 was aged about thirty years had already performed two marriages, but there was no child from his first wife, who had died. However, two/three children were born from his second wife. It has also come in the evidence that first wife of Sarwar died ten years before the occurrence and he contracted second marriage 718 years thereafter. The age of Shahnaz Mai at that time was about 7/8 years as stated by P.W.7 who also admitted that both the parties had been residing in Chak No.186/EB and after refusal of giving the hand of Mst. Shahnaz to Sarwar no dispute/quarrel had ever taken place between the parties. Both P.Ws.6 and 7 on the face of record appears to have set up a false motive as the age of Mst. Shahnaz was about 6/7 years when her hand was allegedly demanded for Sarwar who is Mamoon of the appellant, but that was refused. Even if for the sake of arguments the motive is admitted, when said Manzoor contracted second marriage 2/3 years earlier to the occurrence with another woman and children were also born, there was hardly left any bone of contention between the parties. P.W.11, Riaz Ahmad, S.-I./Investigating Officer also admitted during the cross-examination that the motive part narrated by the complainant was baseless and false. As such we are of the view that the prosecution has miserably failed to prove the motive.

20. So far as the recovery of crime empty from the spot and gun .12 bore from the appellant is concerned, although report of the Forensic Science Laboratory (Exh.P.M.) is positive, but that is of no avail to the prosecution as both the above said articles were sent to the said Laboratory together and in the facts and circumstances, of the present case such a report cannot be used as a corroborative piece of evidence to the ocular account to connect the appellant with the commission of the crime.

21. The upshot of the above discussion is that the prosecution has miserably failed to bring home the guilt to the appellant beyond any shadow of doubt. As such Criminal Appeal No.500 of 2001 is accepted the impugned judgment of conviction and sentence dated 11-7-2001 passed by the learned Additional Sessions Judge, Vehari, is set aside and Bashir Ahmad appellant is acquitted of the charge. He shall be released from the jail forthwith if is not required in any other criminal case.

22. In view of above Murder Reference No.484 of 2001 is replied in negative. H.B.T./B-74/L Appeal accepted.