2007 PLP 1587 (YLR)

HASNAT AHMAD KHAN, J.

Appellants Ghulam Yasin and Muhammad Iqbal were tried by Additional Sessions Judge Dera Ghazi Khan for the murder of Allah Bakhsh deceased in case F.I.R. No.327 of 2000, dated 13-9-2000 for the offence under sections 302/452/34, P.P.C., registered with Police Station Kot Mubarak, District Dera Ghazi Khan, which was later on amended as under sections 302/460/34, P.P.C. The learned trial Court vide judgment dated 7-2-2002 convicted and sentenced both the appellants as under:-- Ghulam Yasin, under section 302(b), P.P.C. to death with the payment of compensation of Rs.1,00,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. and in default he will undergo S.-I. for six months. Under section 460, P.P.C., to imprisonment for life. Muhammad Iqbal under section 460 P.P.C. to 10 years R.I. Benefit of section 382-B, Cr.P.C. was also given to both the appellants.

2. Feeling aggrieved by the impugned judgment, the appellants filed separate appeal (Criminal Appeal No.93 of 2002, by Ghulam Yasin and Criminal Appeal No.121 .of 2002 by Muhammad Iqbal) while the trial Court has made a reference (M.R. No.132 of 2002) seeking confirmation of death penalty sentence awarded to Ghulam Yasin appellants. All these matters are being disposed of together by this judgment.

3. Succinctly the prosecution case as set down in F.I.R. Exh..P.E/1 lodged by Noor Muhammad complainant is that on the night of 13-9-2000 at 1-30 a.m. he along with the P.Ws. on hearing fire-shot and hue and cry of Allah Bakhsh deceased, rushed towards his house and saw two persons running towards the east. An attempt was made by him to apprehended them but the culprits succeeded in decamping from the spot: Thereafter, on inquiry the deceased told the complainant that when he woke up he saw two persons sitting on the wall of "Haveli". As soon as the deceased tried to overpower one of the accused he fired at him hitting on the left side of abdomen. The deceased could not identify anyone. Allah Bakhsh (deceased) was removed to Saddar Din Hospital from where he was referred to D.G. Khan Hospital, but he succumbed to the injuries in the hospital. In the end of the statement (Exh.P.E.) on the basis of which F.I.R., was registered it was stated by the complainant that the deceased had got no enmity with anybody and nobody was suspected by them (complainant party) as murderer of the deceased.

4. The prosecution produced as many as eleven witnesses. After the registration of the case the Investigating Officer (Liaqat Ali, S.-I. P.W.11) proceeded to DHQ Hospital D.G. Khan and recorded the statement Exh.P.E. of Noor Muhammad complainant. Then he prepared the inquest report, Exh.P.G. After that he proceeded to the place of occurrence and prepared rough site-plan Exh.P.L. He also recovered one empty shell of .7 mm rifle and one cover of "Chhurri" from the place of occurrence vide recovery memo. Exh.P.I and Exh.P.G. respectively. He recorded the statements of the witnesses. Both the appellants were arrested on 29-9-2000 and on the disclosure of Yasin accused, he allegedly recovered rifle P.3 from his house vide recovery memo. Exh.P.J. On the same day, Iqbal appellant allegedly got recovered Chhurri P.4 from his residential house vide recovery memo. Exh.P.K. On his direction scaled site-plan in triplicate (Exh.P.A., Exh.P.A./1 and Exh.P.A./2) was prepared. After thorough investigation he submitted the challan against both the appellants who were tried by learned Additional Sessions Judge, Dera Ghazi Khan.

5. During the trial the prosecution come forward with eleven witnesses. Ahmad Nawaz, Draftsman who prepared site-plan appeared as P.W. while Doctor, Abdul Qadeer Nadeem. Who conducted autopsy on the corpse of Allah Bakhsh (deceased) appeared as P.W.2 detail of the injuries received by the deceased as given by the said doctor is as under:-

1. A small circular lacerated wound approximate 0.5 x 0.5 c.m. margin inverted, blackening present on left hypochondrium approximate 7" from midline and 9" from umbilicus, going deep into abdomen (wound of entry).

2. Lacerated wound approximate 3 c.m. x 2 c.m. on the middle of left buttock, margin everted. It is in the line of Injury No.1 which is entrance and it is exit wound, underlying bone (left illium) is fractured. According to him Injury No.1 was caused by fire-arm while Injury No.2 was exit wound. Both the injuries were found to be ante-mortem. Haji Noor Muhammad complainant of the case entered in the witness-box as P.W.4. To support the ocular testimony furnished by said Noor Muhammad the prosecution produced Mst.Safia Mai and Mst. Fatima as P.W.7 and P.W.8 respectively. All the said witnesses furnished ocular account. Nazar Hussain who was cited as a witness of wajtakar was produced by the prosecution as P.W.9. Rahim Baksh appeared as P.W.10 and deposed about the recoveries allegedly effected from the spot as well as at instance of the appellants. Liaqat Ali, S.-I/Investigating Officer appeared as P.W.11. Rest of the witnesses are of formal in nature. After producing the reports of Chemical Examiner, Serologist and FSL as Exh.P.L, Exh.P.M. and Exh.P.N. respectively. The learned ADA closed the case of the prosecution.

6. After closure of the prosecution case, both the appellants were examined under section 342, Cr.P.C. In answer to Question No.8 Ghulam Yasin appellant replied as under:-- "It was a blind murder. I was arrested by the police prior to the occurrence. The complainant party involved me in this case on the asking of police. P.Ws. are closely related to each other. They deposed against me falsely. I have no relation or friendship with alleged co-accused Muhammad Iqbal." Muhammad Iqbal appellant in reply to Question No.6 answered as under:-- "I was arrested by the police two days prior to the alleged occurrence. I was arrested by the police on the allegation that I was running my clinic without licence. After that, I was roped in this false case by the complainant party on the asking of police. Actually it was a blind murder. All the P.Ws. are closely related to each other, for this reason, they deposed false statement. I have no relation or friendship with the alleged co-accused Ghulam Yasin." At the conclusion of the trial both the appellants were held guilty and sentenced as mentioned above.

7. In support of the appeals learned counsel for appellants have contended that originally, the appellants were not named in the F.I.R., and they were implicated in this case on the basis of statements of Mst. Safia P.W.7 and Mst. Fatima P.W.8; the story of the raison d'etre was fabricated after registration of the case; that as a matter of fact it was a case of blind murder and nobody had seen the occurrence. Entire ocular evidence is based upon dishonest improvements and material contradictions. The story put forward by the alleged eye-witnesses is un-believable. As far as the positive reports of the Forensic Science Laboratory is concerned he has contended that the empty of shell allegedly recovered from spot as well as rifle allegedly got recovered at the instance of Ghulam Yasin appellant were sent to the Forensic Science Laboratory on one and the same day as such the positive report of FSL is neither believable, nor trustworthy and it does not advance the case of the prosecution. On the basis of the said submissions the learned 'defence counsel has argued that the prosecution has miserably failed to prove its case against the appellants, and, therefore, they are entitled to acquittal.

8. On the other hand learned Deputy Prosecutor General while appearing on behalf of the State has supported the impugned judgment by contending that the prosecution has successfully proved its case through ocular testimony, medical evidence, motive and recoveries of crime weapons coupled with the positive report of Forensic Science Laboratory.

9. Heard. Record perused.

10. We have straightaway noticed that this unfortunate occurrence had taken place in the night time and none of the culprits, was named in the F.I.R. In the body of the F.I.R., it was specifically mentioned by the complainant that the deceased had got no enmity with anybody and as such at that particular time nobody was suspected as murderer- of the deceased. The appellants were implicated in this case on the basis of the statements of Mst. Safia Mai P.W.7 and Mst. Fatima P.W.8 who are daughter and widow of the deceased respectively. We have gone through the statements of all the eye-witnesses warily and concluded that A same are not confidence inspiring. All the eye-witnesses have made dishonest improvements. Their statements are incongruous to each other. The story put forward by Mst. Safia and Mst. Fatima does not appeal to the reason and is not plausible. While Noor Muhammad the complainant, who appeared as P.W.4 has - made dishonest improvements in his statement to bring it in line with the statements of other eye-witnesses. In his statement Exh.P.E. on the basis of which the legal machinery was put into the motion, he had claimed that after hearing the fire-shot he along with other witnesses had rushed to the house of his brother-in-law i.e., deceased and saw two persons running from the spot. According to him the witnesses had tried to apprehend the culprits but they succeeded in decamping from the place of occurrence. But while appearing as P.W.4 he advanced a new story whereby he claimed that after hearing the shot he ran towards the house of the deceased and climbed up the tree of dates and enquired as to what happened and after the receipt of the information that the deceased had received the fire-arm injury he allegedly ran outside but could not see anything. He was duly confronted with his earlier statement but he could not advance any plausible reason for such dishonest improvements. During cross-examination he tried to back out from the contents of the F.I.R., by claiming that the police officer had not recorded his statement and only thumb-impression was obtained by him. There is another serious loophole in the prosecution story i.e. according to the daughter and the widow of the deceased they had told the names of the culprits to the complainant just after the occurrence but the complainant claimed that the said story was told to him after the burial of the deceased. However, during the cross-examination he admitted that after the incident he had gone to the police station along with Rahim Bakhsh and Ghulam Rasool P.Ws. He further admitted that the widow also accompanied them to the police station. It is not believable that widow of the deceased who claimed herself to be the eye-witness of the occurrence while accompanying the complainant to the police station would not have told the names of the culprits to the complainant and the stance of the complainant that the widow had told the names of the accused to him is further belied by the statement of said Fatima P.W.8, who during the cross-examination candidly admitted that she had immediately told the whole story to the complainant on the spot. Apart from that there are other material improvements made by the complainant. The perusal of his entire statement shows that no implicit reliance can be placed on his statement.

11. Delay of about five hours in lodging the F.I.R. in another important fact which is causing a blow to the prosecution case especially when such delay is seen in the backdrop of the statement of the complainant, who had stated in his examination-in-chief that first of all he had shifted the deceased to the police station at 2-00 a.m. A constable accompanied them to the hospital. He further deposed that his statement was recorded in the hospital at 9-00 a.m. i.e.7-1/2 hours after the unfortunate incident. Said delay in lodging the F.I.R.,. coupled with abovementioned infirmities in the prosecution case shows B that F.I.R., was recorded after preliminary investigations. This conclusion gets further support from the statement of the complainant whereby during cross-examination he admitted that police had observed the foot-prints of the accused. This fact also creates some doubts regarding the ocular testimony.

12. As far as the evidence of Mst. Safia Mai, daughter of the deceased and Mst. Fatima widow of the deceased is concerned their evidence is also not trust-worthy and confidence inspiring. They being the inmates of the house, where the occurrence took place could be termed as natural witnesses but their conduct is leading us to conclude that they are not dependable witnesses. Had they identified the accused at the time of occurrence they would have certainly told their names to the police or the complainant but the F.I.R., which was lodged after the delay of 5/6 hours of the occurrence, neither contained their own names nor those of the accused. Their statements under section 161, Cr.P.C. appear to be ante-dated. Moreover story put forth by the said witnesses is highly improbable. Mst. Safia Mai daughter of the appellant claimed that on the night of occurrence some body who had pulled her doppatta, on her query told his name with full details like his parentage and caste etc., ' so much so that he himself told the name of co-accused also. In the F.I.R., it was claimed that it was a dark night while the said witness claimed that it was a moon lit night and electric bulb was also on. Said bulb was not taken into possession by the police. Mst. Safia Mai P.W.7 deposed in her examination-in-chief that she had told the whole story to the complainant just after the occurrence but it is very strange that said accused were not named in the F.I.R. Similar is the case of P.W.7. The statements of both the said eye-witnesses could not convince us. Story propounded by them regarding the identification of the accused/appellants is highly doubtful. Similarly statement of Nazar Hussain P.W.9 alleged witness of wajtakar is not believable firstly on the ground that like alleged eye-witnesses his name also did not find mention in F.I.R., secondly his explanation of presence at night time due to irrigation of crops is not proved to be reasonable. Thirdly his torch, the source of identification was not taken into possession by the police.

13. As far as the motive is concerned the same did not find mention in the F.I.R. and it was introduced during the investigation. According to Mst. Safia Mai, prior to occurrence, the appellants used to chase her. She further claimed that she had already come to know the names of the accused. Said story shows that previously she knew the accused hence it is not believable, for there seems to be no plausible reasons for the culprits to tell her their names themselves. No further independent witness was produced by the prosecution to support the story of the motive as put forth by the prosecution. For the said reasons we are fully convinced that the prosecution has miserably failed to prove the motive against the appellants.

14. As far as the recoveries of the crime weapons is concerned complainant claimed that the accused had caused fire-arm injury to the deceased with pistol while from the spot an empty bullet of .7 MM rifle was recovered. There is positive report of Forensic Science Laboratory but the same cannot be believed as the rifle and the empty were sent to the Forensic Science Laboratory on one and the same date as is apparent from the report of FSL according to which both of the parcels were received by the said office on 7-10-2000. The empty shell was allegedly recovered on 13-9-2000 and the rifle was recovered on 3-10-2000. Sending of both the articles together makes the said report highly doubtful as chance of fabrication of said evidence cannot be ruled out.

15. As far as the recovery of "Chhurri" is concerned that cannot help the prosecution as no sharp edged weapon's injury was received by the deceased.

16. Epitome of the discussion made above is that the prosecution has remained unable to prove its case beyond the shadow of doubt and 'the fragments of prosecutions evidence are found to be tainted. It is an established law that to err in acquittal is better than to err in conviction. Reliance in this regard is placed upon ' 2005 YLR 2220.

17. Consequently while giving the benefit of doubt to both the appellants both the appeals filed by them are hereby accepted and they are acquitted of the charge. Muhammad Iqbal appellant is on bail. His bail bonds stand discharged. While jail authorities are directed to release Ghulam Yasin forthwith if not required in any other case. Death sentence is not confirmed. Murder reference is answered in the negative. N.H.Q. /G-15/L?????????????????????????????????????????????????????????????????????????????????? Appeals accepted.