P L D 2008 Supreme Court 349 (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

Allah Bachaya son of Ahmed Bakhsh appellant and Ramzan son of Allah Wasaya faced trial in case F.I.R. No.235 registered at Police Station Duniyapur on 30-8-1988 at 7.40 p.m. for offence under section 302/34, P.P.C. for causing the murder of Shah Muhammad son of Allah Wasaya. Vide judgment dated 5-3-1991, the learned trial Court convicted both the accused for offence under section 302/34, P.P.C. and sentenced them to undergo imprisonment for life, both the convicts were directed to pay fine of Rs.10,000 each and in default of payment whereof they were to suffer two years' R.I. each. The convicts were also directed to pay compensation of Rs.10,000 each under section 544-A, Cr. P.C. which on realization was to be paid to the legal heirs of the deceased and in default of payment the convicts were to suffer six months' S.I. each. Both the convicts challenged their conviction and sentence by filing appeals which were dismissed by the learned Judge in Chamber of Lahore High Court, Multan Bench, Multan on 17-12-1998. Thereafter both the convicts challenged their conviction and sentence through Jail Petition No.237 of 1999. Vide order dated 23-8-2001, leave was granted in the following term:-- "

5. As per para. 15 of the judgment of trial Court, the deceased was two acres ahead of the complainant party when he was attacked. It is alleged that before attack the petitioners raised lalkara and avowed to take revenge of death of said Muhammad Iqbal. According to prosecution, after lalkara the deceased left his bicycle and started running, although he had better opportunity to escape from there on bicycle. Two eye-witnesses claimed that they witnessed the entire incident and also heard words uttered by the petitioners, in spite of being about two acres away from the deceased at the time of occurrence.

6. In my view, it is a fit case for granting leave to appeal to consider whether, under the circumstances, two eye-witnesses namely Shah Muhammad and Khadim Hussain, who are relatives of the deceased, can be relied upon for the purpose of awarding capital punishment, especially when motive was not established and recovery of crime weapons not proved." Hence the above captioned appeal.

2. During the pendency of jail petition Ramzan co-convict was released from jail on the basis of compromise recorded by the learned Sessions Judge Lodhran on 26-1-2000, so we are left with Allah Bachaya appellant.

3. While on his way to the police station Shah Muhammad complainant P.W.3 met Anwar Hussain S-I. P.W.1 while the latter was present at Adda Chak No.307/W.B. in lieu of patrol" duty. P.W.10 recorded the statement of Shah Muhammad Exh. P. D and sent the same for registration of formal F.I.R. to the police station through Akhtar Mahmood constable.

4. The relevant facts as given in Exh. PD are that Allah Bachaya appellant belonged to brotherhood of the complainant. His son Muhammad Iqbal died after suffering prolonged illness two months prior to the occurrence. Allah Bachaya suspected that Shah Muhammad deceased was behind the death of his son Muhammad Iqbal who lost his life due to amulets caused by Shah Muhammad deceased. Shah Muhammad deceased, who was married with sister of complainant, many a time explained that he was innocent and wanted to explain his position to Allah Bachaya. On the fateful day at about noon time complainant, Shah Muhammad deceased, Sardar Muhammad son of deceased and Khadim Hussain P.W.4 proceeded to the house of Allah Bachaya situated in Chak No.279/W.B. to explain their position. Allah Bachaya was not present in his house. On their return, the deceased and the P.Ws stayed in the house of one Allah Bakhsh son of Easa (not produced) and thereafter started towards their houses on foot. At about 6 p.m. they reached near High School Jhandeer. Shah Muhammad deceased was going two acres ahead of the P.Ws. Meanwhile Allah Bachaya appellant and Muhammad Ramzan (since acquitted) while armed with Sota emerged from school. Thy were raising Lalkara, Shah Muhammad left his cycle and ran towards brick-kiln. Both accused overtook the deceased and caused injuries to him with their sticks. The deceased lost his life on the spot. The accused made good their escape from the spot and could not be apprehended by the P.Ws. as the accused threatened them with dire consequences.

5. In order to prove its case, prosecution produced ten witnesses. Shah Muhammad brother-in-law of the deceased P.W.3 and Khadim Hussain P.W.4 nephew of the deceased furnished the ocular account. They also stated about the motive. Their statements are in the line with the story given in the F.I.R. and need not be repeated. Dr. Altaf Ahmed Khan appeared as P.W.5 and stated that he conducted postmortem of the deceased on 31-8-1988 i.e. next day. He observed ten injuries on the person of the deceased which were caused by blunt weapon. In his opinion injuries Nos.1 and 2, which were on the head of the deceased, caused the death. According to him, the deceased lost his life immediately after receipt of injuries and the time elapsed between death and postmortem was about 15 to 20 hours. During cross-examination he stated that he received dead body on 31-8-1988 at 9-15 a.m. He further stated that the deceased might have taken food 3/4 hours prior to his death. P.W.2 Allah Ditta nephew of the deceased stated about the arrest of Allah Bachaya and recovery of Sota P

4. Anwar Hussain S.-I. P.W.10 stated about the investigation of the case. The rest of the witnesses are formal in nature. The prosecution closed its case after placing on record the report of Chemical Examiner Ex. PK and that of Serologist report Exh.PL. After the closure of the prosecution case, statement of Allah Bachaya was recorded under section 342, Cr. P.C. who claimed to be innocent. However, neither he appeared as a witness of his defence under section 340(2), Cr. P.C. nor he adduced any defence evidence.

6. The learned counsel for the appellant has submitted that it was an un-witnessed occurrence and that both the eye-witnesses were closely related to the deceased. They were chance witnesses and inimical towards the appellant and that their statements were not corroborated by any reliable evidence.

7. Conversely, the learned Deputy Prosecutor-General Punjab has submitted that the accused were known to the P.Ws. and that P.Ws. had come out with a plausible explanation for their presence at the time of occurrence and that the ocular account was supported by the medical evidence and that failure to establish the motive would not affect the prosecution case.

8. We have heard the learned counsel for the parties and have also scanned the entire record of the case. The occurrence took place in front of Fazal High School near Jhandeer Wah. Neither the P.Ws. nor the deceased lived nearby. Allegedly they were present there while they were going back to their houses. It may be mentioned here that the complainant lived at a distance of 7/8 miles from the place of occurrence while Sardar P. W, Shah Muhammad deceased and Khadim Hussain P.W. lived at a distance of six miles. The complainant also admitted that his house was at a distance of three miles from the house of deceased. The sole explanation of the deceased and P.Ws being together was that they had assembled to go to the house of Allah Bachaya appellant in order to clarify the matter that Iqbal son of appellant did not lose 'his life due to amulets/taveez dhagha caused by Shah Muhammad deceased. During trial, the complainant and P.W.4 both admitted that Shah Muhammad deceased did not deal in any taveez dhagha and was a Zamindar. That cuts the root of the prosecution case as in that case there was no occasion for Allah Bachaya appellant to suspect that Shah Muhammad deceased was behind the death of his son. No reason was mentioned in the F.I.R. as to why the day of occurrence was selected for giving clarification to the appellant at his house. During trial the witnesses tried to improve their statements by mentioning that a Panchayat was to be convened. Neither any member of Panchayat was named/mentioned nor produced. . It is also not in evidence that any member of Panchayat was available at the house of Allah Bachaya while he himself was absent. It is also not mentioned that any time of arrival was conveyed either to Allah Bachaya or any member of the Panchayat. According to P.W.4 they reached the house of Allah Bachaya at 3-00 p.m. and thereafter they went to the house of Allah Bakhsh on foot and reached there at 4-00 p.m. The whole party stayed in the house of Allah Bakhsh for about two hours. It is significant to note that Allah Bakhsh, who was not produced during trial, was not present in the house yet the deceased and the P.Ws spent two hours in his house. The deceased and the P.Ws left the house of Allah Bakhsh at about 6 p.m. and according to F.I.R. they started towards their house on foot. It was not mentioned at all in the F.I.R. as to why Shah Muhammad deceased was going two acres ahead of the rest of the party. Normally he would remain with the P.Ws. During trial the P.Ws made dishonest improvements in order to justify the going ahead of the deceased. It was rightly observed by this Court in the leave granting order that in ordinary circumstances sensing danger, the deceased would have preferred to escape by speeding up the bicycle rather than leaving it. It is also noteworthy that the deceased and the P.Ws were four in number. All the P.Ws. were closely related to the deceased. One of the P.Ws. Sardar Muhammad was son of the deceased. The accused who were two in number were not armed with any fire arm weapon or hatchet. They were carrying the ordinary dhangs. In that case if the witnesses would have been present they would have certainly tried to save the lives of their near and dear one specially Sardar Muhammad, if present, being son of the deceased must have intervened. It was observed by this Court in the case of Arif Hussain and another v. The State (1983 SCMR 428) as follows:-- "It does not appeal to reason that father and brother (of deceased) who reached the spot on the alarm of the deceased Ibrar Hussain would come out of their house without arming themselves properly, or on the spot they would not make any attempt to save the life of one of their dear ones. They could have at-least picked up stones from the spot and hit the appellants who were admittedly not armed with fire-arms."

9. In the instant case, the F.I.R. was not recorded at the police stations. It has been held time and again that F.I.Rs. which are not recorded at the police stations suffer from the inherent doubt that those were recorded at the spot after due deliberations.

10. As far as medical evidence is concerned, it supports the prosecution case only to the extent that the deceased lost his life due to injuries caused by blunt weapon and not beyond. According to doctor the deceased might have taken his last meal 3/4 hours prior to his death. On the contrary, the P.Ws insisted that they did not take any food during their unnecessary stay in the house of Allah. Bakhsh. The motive and recovery ahs been disbelieved by the learned courts for valid reasons and we need not discuss it.

11. For all what has been stated above, we are of the considered opinion that presence of the P.Ws at the time of occurrence was not free from doubt. It is cardinal principle of criminal jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of right and not as concession. Hence, we allow this appeal and set aside the judgments passed by the learned courts below. The appellant is acquitted of all the charges and would be released forthwith if not required in any other criminal case. S.A.K./A-4/S Appeal accepted.