2008 PLP 854 (MLD)

BASHIR A. MUJAHID, J.

Abbas son of Bashir Ahmad after having been tried along with his father Bashir Ahmad under section 302/34, P.P.C. in case F.I.R. No.167, dated 25-9-1993 under section 302/34, P.P.C. registered at Police Station Warburton for murder of Muhammad Saeed, was convicted and sentenced to death vide the impugned judgment, dated 30-9-2000 passed by the learned Additional Sessions Judge, Nankana Sahib. He was also ordered to pay Rs.50,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to undergo six months imprisonment. The brief facts of the case are that F.I.R. Exh.PG/1 was registered on 29-9-1993 at Police Station Warburton, Sheikhupura on the statement Exh.PG of Muhammad Saeed (deceased) recorded by Mukhtar Ahmad .S.-I., P.W.11 at 8 p.m. at Mayo Hospital, Lahore about the occurrence took place at 9-15 p.m. on 25-9-1993, alleging therein that the complainant/deceased had done PTC course and was cultivator. On 25-9-1993 at 9 p.m. he went to the fields to answer call of the nature. It was a moon lit night and after easing himself when he stood up he saw at a short distance appellant Abbas son of Bashir Ahmad along with one companion whose name was not known to the complainant. Abbas shouted at the deceased that he will teach lesson for his engagement with Mst. Azra and fired a shot from Carbine hitting the deceased on his chest and abdomen who fell on the ground. The motive for the occurrence was that he was engaged with Mst. Azra Bibi, daughter of Muhammad Sadiq of the same village with whom Abbas accused wanted to marry. It was further stated that two days before the occurrence Muhammad Maalik, real brother of the deceased and laved were present with the complainant where he was feeding his animals. They over-heard the appellant along with his companions talking that within one or two days one, person is going to be eliminated. It was also alleged that on hearing the fire shot his brother Muhammad Maalik and Javed arrived there and witnessed the culprit fleeing from the spot. The complainant informed Javed and Muhammad Maalik that he knew only one person and no proceedings should be taken against any other person. Then the complainant became unconscious and he got the instant statement recorded at hospital. Initially the case was registered under section 324/34, P.P.C. there-after, on death of complainant Muhammad Saeed in the hospital on 18-11-1993, section 302, P.P.C. was added. Mukhtar Ahmad A.S.-I., P.W.11. undertook the investigation after recording the statement Exh.PG. and according to him he received information at the Police Station about the occurrence on 25-9-1993 that Muhammad Saeed after receiving the injuries was admitted in Mayo Hospital, Lahore, on which he visited the hospital where Abdul Khaliq, brother of the deceased and other relatives stated that Muhammad Saeed was unconscious and has not disclosed the name of any culprit and gave a written application Exh.DC and the case will be got registered after inquiring from him about the culprit. After receipt of the said application Exh.DC he along with other police officials returned to the police station and got report No.23 recorded in the police diary at 2-30 a.m. on 26-9-1993 in this regard. Thereafter, on 29-9-1993 he visited the hospital and moved an application Exh.PK to the doctor to enquire whether the patient was in a position to make the statement and after obtaining the information he recorded statement Exh.PG of Muhammad Saeed which was signed by him. The complaint was sent to the police station for registration of the formal F.I.R. and he himself arrived at the spot and recorded the statements of the P.Ws. under section 161, Cr.P.C. On 10-10-1993 he arrested the appellant and obtained his physical remand who while in police custody led to the recovery of Carbine P2 which was taken into possession through memo. Exh.PD. On 18-11-1993 he received information about the death of Muhammad Saeed, on which, he again arrived at Mayo Hospital and took the dead-body into possession and prepared the injury statement through memo. Exh.PN and inquest report Exh.PO and handed over the dead-body for post-mortem examination. After post-mortem examination he took last worn clothes of the deceased into possession through memo. Exh.PB. Thereafter, investigation of the case was taken over by Abdul Aziz, Inspector P.W.12 who completed the investigation and submitted the challan. The investigation was also conducted by Manzoor Ahmad, Inspector D. W.1. and DSP Syed Aftab Ijaz, D.W.2. After completion of investigation challan against the accused was submitted. The trial Court framed the charge which was denied by him and he claimed trial. During the trial the prosecution examined as many as 12 witnesses to prove the guilt of the accused. The medical evidence was furnished by Dr. Abdul Hameed, P.W.3 who conducted the post-mortem examination on the dead-body of Muhammad Saeed and found the following injuries on his body:-- (1) There was mid line incision of laprotomy with 9 tension sutures measuring 29 x 1.5 c.m. in size starting from epigastrium 5 c.m. to the public symphysis. (2) There was healeld scar mark measuring 1 x 1 c.m. in size, circular in shape on left chest, 5 c.m. from left nipple medially. (3) An old healed scar mark on right side of abdomen measuring 1.5 x 1.5 c.m. in size, circular in shape and 8.5 c.m. from umbilicus. (4) An healed scar mark present on the right side of the abdomen measuring 1.5 x 1.6 c.m. in size, circular in shape and 1 c.rn. below the umbilicus. (5) There was colostomy wound present on left side of the lower abdomen measuring 2 x 2 c.m. in size and circular in shape and 6 c.m. from mid line. (6) There was 5 x 1 c.m. size surgical incision present on the right side of the lower abdomen with one blue colour silk suture present and 8 c.m. from mid line and 7 c.m. above right anterior superior iliac spine. (7) There was surgical incision measuring 2 x 1 c.m. in size present in the left para colic region, 6.5 c.m. from mid line and 7.5 c.m. from left anterior, superior iliac spine. In his opinion the cause of death in this case was septicemia as the complication of the firearm injuries to the abdomen. Before that Dr. Tafheem Haider, P.W.8 had medically examined Muhammad Saeed while he was posted as Medical Officer, RHC Warburton and found the following injuries on his person: (1) An entrance wound 0.4 c.m. circumference on the left chest interiorly about 2 c.m. medial to left nipple. (2) An entrance wound 0.4 c.m. circumference on the abdomen about 5 c.m. below the umbilicus slightly towards right half of the abdomen. (3) An entrance wound 0.4 c.m. circumference on the right hyeochonorium about 8 c.m. from the makburtny point. Dr. Suhail Noor Malik, P.W.9 proved surgical notes which were prepared by him at the time of operation of Muhammad Saeed, deceased on 18-11-1993 which reads as under: "Peritoneal cavity opened. Six litters of faecolent material aspireated. There was a parastormal hernia of ilium through the colostomy wound. Hernia repaired and adhesions removed. A perforation. x 1 c.m. found on the jejunum one foot distil to DJ flexure. Perforation repaired in double lyer with vicryl 2/0. Peritoneam cavity irrigated with normal saline and thorough peritoneal toilet. Two corrugated drain put in the pelvic cavity and left paracolic gutter. Mass closure done with prolene No.1 with tension sutures. Anti septic dressing done." The ocular account was furnished by Javed, P.W.6 and Muhammad Maalik, P.W.7. Muhammad Maalik is real brother of the deceased and according to both the witnesses they were going towards the fields on 25-9-1993 at 9-15 p.m. and they over-heard the fire shot from the side of railway line and they rushed towards there and saw Abbas accused holding a carbine in his hand. Thereafter, Abbas along with another person fleeing from the spot. Both of them also stated that 1/2 days before the occurrence they were present along with Muhammad Saeed who was giving fodder to the cattles and Abbas appellant along with another person passed nearby talking that one person will be eliminated within 1/2 days. Muhammad Yousaf, P.W.1 identified the dead-body of Muhammad Saeed at the time of post-mortem examination. Akbar Ali, FC P. W .2 attested the recovery memo. Exh. PD whereby carbine P.2 was recovered by the appellant. Muhammad Anwar, FC P.W.4 escorted the dead-body for post-mortem examination. Jalil Ahmad, Moharrar P.W.5 registered the formal F.I.R. Exh.PG/1 on the statement Exh.PG. Syed Rab Nawaz Draftsman, P.W.10 prepared the site plan of the place of occurrence. After close of the prosecution evidence statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question as to why the cases against him and the P.Ws. deposed against him he stated as under:-- "I am innocent without having any concern with the instant occurrence.. In fact the instant case was a blind occurrence. Muhammad Saeed deceased while in injured condition disclosed before Dr. Tafheem Haider, MO, Rural Health Centre, Warburton that some unknown culprits had injured him by firearms. It is also added that at the time of alleged occurrence, I was busy in the General Election campaign with Mr. Shahid Manzoor Gill, Ex-MPA along .with other respectables of the locality. I am absolutely ignorant about the alleged occurrence and I have been roped in this case on mere suspicion and due to enmity. The P.Ws. have deposed against me due to enmity and party faction." He also produced in defence Manzoor Ahmad Inspector, D.W.1, who stated that' he partly investigated the case. Syed Aftab Ijaz, SP D. W.2 stated that investigation was conducted by him and during his investigation the accused were found innocent. Ahmad Sher, D.W.3 stated that he was busy in general elections of 1993. Abbas accused remained with him on 25-9-1993 from 6 p.m. to 10 p.m. and during this period they received information about the incident. Muhammad Sharif, D.W.4 also stated that on 25-9-1993 the appellant along with Shahid Manzoor Gill, Ahmad Sher, Rana Zafar and others had come to his house in connection with election campaign and they remained with him from 6 p.m. to 9/9.30 p.m. where they received information about the occurrence. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. Whereas Bashir Ahmad died before conclusion of the trial. The trial Court has sent up Murder Reference No.577 of 2000 for confirmation of the death sentence of the appellant. Both the matters are being decided by this single judgment. The stand of learned counsel for the appellant is that it was an un-witnessed occurrence and the appellant has been falsely implicated; that according to the statement of Dr. Tafheem Haider, P.W.8 who medically examined Muhammad Saeed when he was taken in Rural Health Centre in injured condition stated that the patient was in senses. He inquired about the incident but he did not name anybody, therefore, F.I.R. lodged with inordinate delay is result of afterthought with deliberations and consultation; that Javed, P.W.6 and Muhammad Maalik, P.W.7 also cannot be termed as eye-witnesses of occurrence as according to them they were attracted to the spot on hearing the fire shot that they had not seen the appellant firing at the deceased. He has also argued that according to the first Investigating Officer Mukhtar Ahmad, P.W. 11 he visited the hospital and relatives of the deceased gave him in written that the deceased was not in a position to make the statement he had not nominated any person for commission of the crime. It is further argued that statement Exh.PG of the deceased cannot be considered as dying declaration as the Investigating Officer has not observed the legal formalities. Admittedly, relatives of the deceased were present around during this period and deceased was in senses, therefore, he was tutored and the appellant was named in the F.I.R. by asking of his relatives and no value can be attached to such statement. It has been prayed that the appeal be allowed and the appellant be acquitted of the charge. Learned counsel for the State has opposed the appeal and supported the impugned judgment. We have given our due consideration to the contentions raised at the bar and also examined the record. The occurrence took place on 25-9-1993 at 9-15 p.m. in the fields and statement Exh.PG was recorded on 29-9-1993 at 8 p.m. in the hospital. According to the statement of Dr. Tafheem Haider, P.W.8 the deceased when brought before him in Rural Health Centre in injured condition was in senses and on his asking he failed to nominate any culprit. Mukhtar Ahmad S.-I., P.W.11 also visited Mayo Hospital where injured was shifted but he never attempted to get his statement recorded after obtaining opinion of the doctor about his condition and went back after receiving the application written by relatives of the deceased Exh.DC. he duly entered this application in daily diary and this application has not been denied by the prosecution. There is no explanation why the statement of the deceased was not recorded from 25-9-1993 to 29-9-1993. During this period relatives of deceased remained with him and the Investigating Officer while recording statement Exh.PG has also not observed the legal formalities as required under the police rules. Neither he took any step to bring the Magistrate for recording the dying declaration nor he associated the doctor and he has also not observed that the relatives of the injured were turned out of the room. The possibility that the injured was tutored during this period and he made the statement with consultation/due deliberation, cannot be ruled out. According to the statements of Javed, P.W.6 and Muhammad Maalik, P. W.7 they were attracted to the spot on hearing the fire shot and saw Abbas appellant standing holding Carbine in his hand. Thereafter, they saw him fleeing away along with another, person from the spot. They had not stated that appellant had fired at the deceased. About the earlier occurrence of the motive also if they had suspected the appellant about any conspiracy or extending threat their natural conduct should have been to report the matter to the police. The same two persons are witnesses of conspiracy and of occurrence which appears to be unnatural. The recovery of Carbine is also inconsequential as no empty was taken into possession from the spot. Muhammad Saeed died on 18-11-1993 meanwhile he had undergone surgical intervention and cause of death as noticed by the doctor was septicemia which he developed while he was admitted in the hospital, therefore, death was not direct result of the injury caused to the deceased by the accused. The motive alleged by the prosecution was also not proved. The appellant and his father were found innocent during the investigation conducted by senior police officers. Although opinion of the police officials is not binding on the Court but reasons for declaring them innocent was based on cogent reasons. Father of Mst. Azra was examined by the Investigating Officer and story narrated in the F.I.R. about the engagement of Azra with the deceased or demanding her hand by the appellant was not found correct, therefore, after deep reappraisal of the evidence we are convinced that the prosecution case has not been established against the appellant beyond shadow of doubt. Resultantly, the appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is ordered to be released forthwith if not required to be detained in any other case. Murder Reference No.577 of 2000 is answered in the Negative. M.H. /A-126/L Appeal allowed.