2007 PLP 1090 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Nazir Ahmad along with his co-accused Ghulam Abbas and Shabbir alias Shabboo was booked in case F.I.R. No.362 registered at Police Station Hujra Shah Muqeem on 3-9-1996 for offences under section 302/34, P.P.C. They were tried by the learned Additional Sessions Judge, Depalpur. After recording of statements of the accused under sections 340(2) and the statements of the D.Ws., when the case was fixed for final arguments, Ghulam Abbas and Shabbir alias Shabboo absented themselves, so their case was ordered to be taken up after their arrest. However, vide judgment dated 26-10-2001, the learned trial Court convicted Nazir Ahmad for offence under section 302(b), P.P.C. and sentenced him to death plus payment of Rs.1,00,000 as compensation to the legal heirs of the deceased.

2. Aggrieved by his above noted conviction and sentence, Nazir Ahmad, convict/appellant, has filed the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No.716 of 2001, seeking confirmation or otherwise of death sentence imposed upon the appellant. Both these matters are being decided through this consolidated judgment.

3. The brief facts of the case per complaint Exh.PA recorded by laved Raza, S.-I./P.W.10, at the instance of Ghulam Sarwar, complainant/P. W.1, which based the registration of formal F.IR. Exh.PA/1, are that the complainant was Munshi/ Accountant of agricultural income of Syed Ghias-ul-Hassan Shah. The complainant, his nephew Shaukat Ali-deceased, Ghulam Abbas/P.W.2 and Hassan Raza/P.W.4 were sleeping on the cots at the Dera of Syed Ghias-ul-Hassan Shah. At about 4-00 a.m. on 3-9-1996 at the report of fire, they woke up and saw that Nazir Ahmad-appellant, Muhammad Abbas and Shabbir alias Shabboo, all equipped with .12 bore guns, were firing with their respective weapons upon Shaukat Ali. The P.Ws. raised hue 'and cry but they were made quiet by the accused on the threat of their lives. Shaukat Ali succumbed to the injuries at the spot. The accused, while brandishing their weapons, decamped from the scene of occurrence by a car which was standing on the road. As to the motive, it was alleged that eight years prior to the occurrence, Shaukat Ali had committed the murder of brother of the accused and for that reason, the accused caused the death of Shaukat Ali.

4. After drafting the complaint Exh.PA at the instance of the complainant and sending it to the police station for registration of formal F.I.R., on 3-9-1996, Javed Raza, S.-I./P.W.10 reached the spot. He prepared the injury statement Exh.PL and inquest report Exh.PM of the deceased and dispatched the dead body to the mortuary for post-mortem examination. He collected blood-stained earth from the spot and sealed the same into parcel vide memo. Exh.PC. He also took into possession blood-stained cot P-2 through memo. Exh.PD. He also collected eight empties of .12 bore P-1/1-8 and took the same into possession vide memo. Exh.PB and also prepared rough site-plan of the place of occurrence Exh.PP. He also got prepared scaled site-plan Exh.PE 'from the draftsman. All the accused were arrested on 25-9-1996. On 4-10-1996, the appellant, while in custody, led to the recovery of gun P-3 and its licence, which were taken into possession vide memo. Exh.PF. After completion of investigation, the appellant along with his co-accused (since absconders) was sent up to face trial.

5. To prove its case at the trial, the prosecution produced eleven witnesses. After tendering in evidence, the reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Exh.PQ, PR and PS respectively, the prosecution closed its side. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication on account of previous enmity. He further stated that it was an unseen occurrence. The appellant did not appear as- his own witness under section 340(2), Cr.P.C. However, he produced Mian Muhammad Rafiq Dad, Retired Magistrate Section 30, as D.W.1 and Tariq Rafique, Advocate, as D.W.2, in his defence.

6. Learned counsel for the appellant submits that the P.Ws. were related inter se and inimical towards the appellant; that it was an un-witnessed occurrence; that there was no occasion for the P.Ws. to sleep along with Shaukat Ali, as they were not employees of Syed Ghias-ul-Hassan Shah; that both the P.Ws. have made contradictory statements; that firstly, Ghulam Abbas and Hassan Raza, P.Ws. got their statements recorded under section 164, Cr.P.C. in favour of the appellant and then they resiled from the same; that the delay remained unexplained; and that the case of the prosecution was full of doubts.

7. The learned counsel appearing on behalf of the State have submitted that the witnesses were natural, as they were sleeping along with the deceased; that the contradictions in the statements of the witnesses, if any, were of minor nature; that the delay in reporting the matter has been explained by Ghulam Sarwar; that the ocular account is supported by the medical evidence and corroborated by the circumstances of the case.

8. We have heard the learned counsel for the parties and have also gone through, the record of the case.

9. Ghulam Sarwar, uncle of deceased Shaukat Ali, is author of the case. Ghulam Abbas/P.W.2 is son-in-law of Ghulam Sarwar. Hassan Raza/P.W.4 is maternal nephew of Ghulam Sarwar. According to prosecution case, all the witnesses were sleeping in the Dera of Syed Ghias Shah. The complainant claimed himself to be his Munshi/Accountant of agricultural income. He further stated that the deceased and the P.Ws. were employees of Ghias Shah. During their statement before the learned trial Court, it was established that the house of Ghulam Abbas was at a distance of one Acre; Ghulam Sarwar was running a grocery shop since 1947 and used to remain at the S.H.O. from morning till evening. He had his own house. Hassan Raza/P.W.4 admitted that his house was at a distance of 2/2-1/2 Acres on the southern side from the place of occurrence and the house of Ghulam Sarwar/complainant was at a distance of 10/12 Acres from the spot, while the house of Ghulam Abbas was at a distance of two Acres. The occurrence took place at a time when the daylight was not available and according to P.Ws. they witnessed the occurrence in the light of electric bulb. All the witnesses are related inter se and related to the deceased. In order to become eye-witnesses, they have stated that they were sleeping in the Dera of Ghias Shah. As narrated above, all the P.Ws. had independent houses, while Shaukat Ali deceased was unmarried, so sleeping of Shaukat Ali at the Dera of his employer Ghias Shah is justified, while the sleeping of the P.Ws. at the said Dera is per chance. Undeniably, enmity existed between the deceased and the appellant over commission of murder. In the circumstances, the evidence furnished by the related and per chance witnesses needs deeper scrutiny. Perusal of their statements reveals that the witnesses have contradicted one another on material points. The occurrence allegedly took place at 4-00 a.m., while the matter was reported to the police after 4 1/2 hours at 8-35 a.m. and that too not at the police station but at Chaurasta (Chowk) Hujra Shah Muqeem where per chance the police officer was available. The complainant admitted during cross-examination that police station was at a distance of only two miles. Having stated so, he tried to justify the delay in reporting the matter to the police by stating that no transport was available at the time of occurrence. According to him, no car, motorcycle or tractor was available at the Dera of Ghias Shah. He further stated that the villagers had cars and other transport but they refused to help the complainant. On the contrary, Ghulam Abbas has stated that the tractor was present at the Dera. Car and motorcycle of Ghias Shah were also present and the other landlords of the village had also their vehicles; and that the complainant party had no enmity with any of the landlords of the village. Hence, tin, prosecution failed to explain the delay in reporting the matter to the police. It is also noteworthy that the matter was not reported at the police station. Such-like F.I.Rs. are surrounded by the inherent doubt that they were recorded by the police officer after visiting the spot and due deliberations. The witnesses Ghulam Sarwar and Ghulam Abbas also made dishonest improvements by specifying the weapons as pump action guns. In their earlier statements they had not said that the accused were armed with pump action .12 bore guns. The necessity for introducing this dishonest improvement arose because eight empties were recovered from the spot and it was not mentioned in the F.I.R. that the accused who were three in number re-loaded their guns. During cross-examination, the complainant after conceding that he could not say as to how many shots were fired at the deceased, volunteered that in the morning from the number of empties they had come to know. Ghulam Abbas appeared before the Magistrate on 30-4-1998 along with his learned Advocate and he stated that the occurrence took place much earlier and that assailants could not be identified. He 'further stated that he had not witnessed the occurrence and came to know later that he was cited as eye-witness in the case. He was duly confronted with his above noted statements. His answer was that he had made the statement under pressure and that one Ashiq along with others was present outside the Court in order to ensure that he makes statement in favour of the accused. His statement was recorded by the Magistrate on 30-4-1998, while his statement before the learned trial Court was recorded on 6-12-2000. In the interregnum period he did not file any application before higher Court challenging the statement recorded before the Magistrate. On the contrary, perusal of Exh.PB reveals that the learned Magistrate gave the witness due time for consideration before recording his statement. The learned Magistrate appeared as D.W.1 and stated that he recorded the statement of Ghulam Abbas after observing all the formalities and after ensuring his satisfaction. He further stated that Ghulam Abbas had appeared before him along with his Advocate Tariq Rafiq. It was not even suggested to D.W.1 that he did not ensure that the witness was under pressure or not. Ghulam Abbas has given two contradictory statements; hence, no reliance can be placed on his testimony. As far as P.W. Hassan Raza is concerned, he played trick with the defence. While appearing in the witness-box before the learned trial Court, he stated on oath that nothing was recovered in his presence. He was declared hostile and A.P.P. was allowed to cross-examine the witness. During cross-examination, only evidence of recovery was put to him. Thereafter the defence counsel showed his intention to cross-examine the witness on the facts of the occurrence which led the Court to inquire from the witness whether he was an eye-witness or not. So as question (Are you eye-witness of the case?) was put by the Court to the witness. The answer was "Yes. I am the eye-witness of the occurrence." The next question put to the witness was "Can you tell about your evidence regarding the occurrence?" In answer to this question, this witness immediately became the eye witness and made a parrot like story in accordance with the examination-in-chief of the other two P.Ws. He also introduced an element of pump action. The irony is that this witness with his own accord had appeared before Mian Muhammad Rafiq Dad, the then Magistrate, and made statement on 9-2-1998, which is available on record as Exh.DD. In his statement he mentioned that on the night of occurrence, he was not present at the spot and that he lived near the Dera of Syed Ghias Shah. He further stated that he was cited as a witness wrongly. Before recording the statement, the learned Magistrate made it clear to the witness that he was not bound to make any statement. The learned Magistrate also ensured as to whether the witness was under some pressure or not. It was also made clear to him that the statement could be used against him. The witness was given time to think about it and he was sent outside the Court. He was recalled and his statement was recorded in isolation. The proceedings of the Magistrate are available in the black and white and bear his signatures. Further more, the Magistrate appeared as D.W.1 and stated that he recorded the statement of Hassan Raza after ensuring that he was not under any pressure and after observing the formalities. The Magistrate was not challenged in this regard. As noted, above this witnesses did not protest against his statement recorded on 9-2-1998 till 17-1-2001 when his statement was recorded by the learned trial Court' Therefore, no reliance can be placed on this witness, as well.

10. The medial evidence supports the prosecution case to the extent that the deceased lost his life due to fire-arm injuries but it does not lead to the killer.

11. As far as motive is concerned, it was narrated in the F.I.R. that eight years prior to the occurrence, Shaukat Ali deceased had murdered the real brother of appellant Nazir Ahmad and absconder co-accused Ghulam Abbas. Ghulam Abbas-P.W. stated before the learned trial Court that the murder took place in 1987 and after 6/7 months, the accused left Mustafabad and started living in Chonian. He further stated that he was resident of Mustafabad since birth and the accused were known to him since their childhood and they had been playing together. According to him, after settling in Chonian, the accused never returned to Mustafabad. On the same point, Ghulam Sarwar-P.W. after stating that the accused lived at Mustafabad for two years after the murder of their brother and then left their village, volunteered that their "Brotheri" was still living in Mustafabad and the accused used to visit them. He again said that the accused left Mustafabad 4/5 years prior to the occurrence. In any case nothing happened during eights of the murder of the accused/appellant.

12. During investigation, shotgun pump action was allegedly recovered from Nazir appellant; one double barrel shotgun was recovered from Shabbir accused who absconded; and one single barrel shot gun was recovered from Ghulam Abbas/ absconder accused. The empties recovered from the spot and the weapons were sent to Forensic Science Laboratory (FSL). According to report of FSL Exh.PS, the empties were not found to have been fired from the recovered weapons. The report of FSL is in favour of the accused, who claimed that it was un-witnessed occurrence and they were roped in the case due to existing enmity.

13. The upshot of the whole discussion is that in our considered opinion, the prosecution case is not free from doubt against the appellant. Hence, this appeal is allowed and the judgment passed by the learned trial Court to the extent of the appellant is set aside. He is acquitted of all the charges and would be released forthwith if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative. H.B.T./N-116/L Appeal allowed.