2008 PLP 473 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.1708 of 2001 filed by Muhammad Anwar, Criminal Appeal No.1804 of 2001 filed by Muhammad Sarwar and Criminal Appeal No.1869 of 2001 filed by Muhammad Arif, who faced trial in case F.I.R. No.183, registered at Police Station Manga Mandi, on 9-7-1995, for offences under sections 302/324/452/34, P.P.C., before learned Additional Sessions Judge, Lahore, who after conclusion of trial, vide his judgment, dated 25-10-2001 convicted and sentenced the appellant as under:-- (1) Muhammad Anwar Under section 302(b), P.P.C. Death with compensation of Rs.1,00,000 or in default six months, S.-I. (2) Muhammad Sarwar Under section 324, P.P.C. five years' R.I. with fine of Rs.5,000 or in default three months' S.-I. Under section 337-F(vi), P.P.C. three years' R.I. with Daman amounting to Rs.5,000 to be paid to Muhammad Tufail P.W.4. Under section 337-F(vi), P.P.C. four years' R.I. with Daman amounting to Rs.7,000 to be paid to Muhammad Tufail P.W.4. (3) Muhammad Arif Under section 324, P.P.C. five years' R.I. with fine of Rs.5,000 or in default three months' S.-I. Under section 337-F(iv), P.P.C. three years' R.I. with daman amounting to Rs.5,000 to be paid to Muhammad Mushtaq P.W.S.

2. Murder Reference No.5 of 2002 for confirmation or otherwise of death sentence awarded to Muhammad Anwar-appellant shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in F.I.R. Exh.PO registered on the statement of Muhammad Mansha-deceased (while he was injured) are that three years prior to the occurrence his elder son Muhammad Hussain had divorced Mst. Rasulan daughter of Anwar, therefore, due to said incident he along with his family members had shifted to Mohlanwal. On the fateful night at about 1-00 a.m. while he and his sons were sitting on the cots and were talking to each other, light was on and the outer gate was open, suddenly Muhammad Anwar armed with mouser, Muhammad Sarwar armed with gun, and elder son of Muhammad Anwar, whose name was not remembered 'to the complainant, armed with carbine, entered his house. Muhammad Anwar raised Lalkara to give taste to them for divorcing Mst. Rasulan and fired at Muhammad Mansha, which hit him on the right side of his abdomen. Muhammad Sarwar caused fire which hit Muhammad Tufail son of the complainant on his legs and the elder son of Anwar made fire hitting Muhammad Mushtaq son of the complainant on his right leg. On hearing of noise Muhammad Tufail, Lumbardar and Muhammad Yousaf P.Ws. reached the spot and the accused fled away after seeing them. The injured were shifted to Hospital, Manage Mandi. It is also stated in the F.I.R. that due to divorce of Mst. Rasulan Muhammad Anwar and others launched murderous assault upon them.

4. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Siddique, S.-I./P.W.11. He reached Services Hospital, Lahore, where the dead body of Muhammad Mansha was lying. After completing necessary formalities he sent the dead body for post-mortem examination. Thereafter he visited the place of occurrence and during investigation he arrested all the three accused. At the instance of Anwar he recovered .30-bore pistol P-11 and took the same into possession vide memo. Exh. P. M. while Muhammad Sarwar led to the recovery of .12-bore, rifle, which was taken into possession vide memo. Exh.PN. After completion of investigation, the accused was sent up to face trial.

5. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh. PR and that of Serologist Exh. P. S. closed its case. The accused in their statements recorded under section 342, Cr.P.C. pleaded their innocence and false implication. Anwar and Arif did not appear as witness under section 340(2), Cr.P.C. However, Muhammad Sarwar made statement in his defence under section 340(2), Cr.P.C. In the instant case five defence witnesses namely Muhammad Ishaq Sindhu, DSP, Allah Ditta, Munir Hussain, Abbas Ali and Muhammad Ibrahim alias Gucha appeared as D. Ws. 1 to

5. After conclusion of trial, the learned trial Court convicted and sentenced the appellants as stated above.

6. The learned counsel for the appellants in support of this appeal have contended that it was a night occurrence and the assailants could not be identified and the appellants have been roped in this case mere on the basis of suspicion; that dying declaration was a piece of fabrication on the part of Siraj Din, A.S.-I./Investigating Officer, who did not appear before the learned trial Court as he deserted from the police; that the ocular account is belied by the medical evidence; that the injury mentioned on the person of Mansha in the F.I.R. in fact is an exit wound; that if Mansha had made statement he would never mention exit wound as entry wound; that similarly, according to the medical evidence, the injury on the person of Tufail was the result of bullet wound, while according to P.W., Sarwar had a gun and 'not rifle; that the prosecution miserably failed to prove-the motive as set down in the F.I.R, that it was virtually impossible for the appellants to travel more than 35 miles in the night without being noticed reached the house of complainant and committed the offence; and that the prosecution case is replete with doubts.

7. The learned Additional Prosecutor-General submits that the occurrence took place in the house of the complainant, so the P. Ws. 4 and 5 were the natural witnesses and their presence could not be denied as they received injuries; that the prosecution has successfully proved the motive as it is in evidence 'that daughter of. Anwar was divorced by Muhammad Hussain son of Mansha about three years prior to the occurrence; that the ocular account is supported by the medical evidence as Mansha lost his life due to fire-arm injury and both the P. Ws. also received fire-arm injuries; that the F.I.R. was rightly treated as dying declaration by the learned trial Court. He supports the judgment of the learned trial Court.

8. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.

9. According to prosecution case the occurrence took place at 1-00 a.m. during night. Muhammad Mansha, who was severely .injured, was taken to Civil Hospital, Manga Mandi. Siraj Din, A.S.-I., who was not produced before the learned trial Court, recorded the statement of Muhammad Mansha at 3-30 p.m. at Civil Hospital, Manga Mandi. Initially the case was registered under sections 452/324/34, P.P.C. Muhammad Mansha breathed his last at 6-45 p.m., hence offence under section 302, P.P.C. was added. The first question which needs determination would be whether Mansha was in a position to make any statement or not. According to medical, medical evidence Muhammad Mansha had received penetrating lacerated wound 2 c.m. x 7 c.m. x DNP with inverted margins on the right iliac bone 3 c.m. below from right edge of iliac bone. Injury No.2 was penetrating lacerated wound 1 c.m. x 7 c.m. x DNP with inverted margins on the right side of lower abdomen below umbilicus. It was an exit wound. Blood was oozing from the wounds and the injured was referred to Services Hospital, Lahore, due to his critical condition. The medico-legal report further reveals that Muhammad Mansha was attended to by the Doctor at 3-10 a.m. after about two hours of the occurrence. P.W.4 Muhammad Tufail, who is son of the deceased, had himself received injuries and had accompanied his father, stated before the learned trial Court that it was correct that when the medical officer called his father he did not reply. He further stated that it was correct that the medical officer directed us to immediately shift the injured to Services Hospital, Lahore; and that it was also correct that in Services Hospital Muhammad Mansha did not talk to any body in his presence. He further stated that Mansha died in the Hospital and according to Doctor the reason behind the death was profuse bleeding. According to P.W.1 he examined Mansha while he was injured at 3-10 a.m. The time of recording the statement given in Fard Bayan Exh.PO/1 is 3-30 a.m. Neither Siraj Din, A.S.-I./Investigating Officer inquired from the Doctor in writing as to whether Mansha was in fit position to make statement nor presence of the Doctor has been mentioned in Fard Bayan. Most important of all according to Fard Bayan/F.I.R. the injury caused by Anwar hit on the right side of abdomen of Mansha. As noted above, the injury mentioned in the F.I.R. was an exist wound. If Mansha would have made statement before Siraj Din, S.-I., then he would never be a wrong in telling the seats of injuries, as he himself received injuries. P.W.11. Muhammad Siddique, S.-I. admitted it to be correct that the offences mentioned in the first Zimni at its top were under sections 302/324/452/34, P.P.C. He further admitted it to be correct that before writing Zimni the offences are mentioned at the head of Zimni Form. We ourselves have perused the first Zimni in the interest of justice, which denotes that Zimni was recorded on 9-7-1995 at 3-30 a.m. during night and its head contains offence under section 302, P.P.C. It has rightly been held by the superior Courts that injuries on the person of witnesses would indicate only their presence at the time of occurrence but receiving of injuries would not automatically turn them into truthful witnesses. The statements of injured witnesses also need scrutiny and appreciation in the backdrop of the circumstances of the case, like other witnesses.

10. Muhammad Mushtaq P.W.5 other son of Mansha-deceased, who also received injuries during occurrence, made dishonest improvement by stating before the learned trial Court that statement of his father Muhammad Mansha was recorded by the police. He was confronted with his earlier statement, wherein it was not mentioned. As against all the witnesses, this witness went on to say that the statement of Mansha was also recorded in Services Hospital, Lahore. It may be noted here that Muhammad Tufail as well as Muhammad Mushtaq in their statements recorded under section 161, Cr.P.C. stated that Muhammad Mansha received injury at the hand of Muhammad Anwar at his abdomen. Had they been awaken at the time of occurrence then they would not commit this error, as the injury was an exist wound. The occurrence took place after midnight. Normally the people are sleep at that time but in this case the P. Ws. claimed that they were sitting on their cots and were chatting. However, they had to concede that there was no special occasion for remaining awaken till 1-00 a.m. on the fateful night. After registration of case the investigation was entrusted to Muhammad Siddique, S.-I./P. W.11., who went to Services Hospital, Lahore, where dead body of Mansha was lying and after completing the necessary documents sent the dead body for post-mortem examination. Thereafter he inspected the place of occurrence in the presence of witnesses and also prepared rough site-plan Exh.PR. During trial he conceded that he did not mention in Exh. PR about the location of electric bulb. More importantly he did not mention any source of light in his inspection note. According to F.I.R. and according to P.Ws., Sarwar accused was armed with a gun and fire caused by him hit on the legs of Tufail P.W.4. Dr. Tahir Ismail/P.W.2, who examined Muhammad Tufail stated before the learned trial Court that injury cause to Tufail was the result of bullet. He ruled out that injury could be caused by pellet. He further stated that injuries Nos. 1 and 2 caused to Tufail were inflicted with same kind of weapon. He explained that wound caused by only one pellet would be lesser in size than the one cause by a bullet. Further explained that if sufficient number of pellets strikes the body then the size of the injury would be larger. So the medical evidence relating to Muhammad Mansha-deceased and Muhammad. Tufail/P. W. hardly supports the prosecution version.

11. The motive as set down in the F.I.R. was that Muhammad Hussain son of Muhammad Mansha deceased was married with Mst. Rasulan daughter of Anwar. Muhammad Hussain divorced Mst. Rasulan which caused grievance to the accused. It was not mentioned in the F.I.R. as to why the divorce was given. During trial it transpired that Muhammad Hussain had divorced 3/4 years prior to the occurrence and thereafter he had remarried. It was conceded by the P. Ws. that during intervening period no untoward incident took place between the complainant party and the accused. It is also in evidence that accused lived in Bhaiphero, which was at distance of 30/35 Kms from the house of deceased. It is also in evidence that the complainant party had no grudge against Muhammad Tufail/P.W. or Muhammad Mushtaq/P.W. Furthermore according to P.W.5, five months prior to the occurrence Muhammad Hussain had shifted to Karachi. Undeniably Sarwar accused lived at a different place and was in a different business. He had no ill will or grievance against the deceased or injured P. Ws. There was no earthly reason for him to join Anwar-appellant in launching criminal assault. The implication of Sarwar, who is brother of Anwar, and Arif, who is son of Anwar, clearly shows that the basis was suspicion alone and the complainant party intended to implicate as many male members of the accused as possible. It is more than apparent that divorce having been effected many years ago and Muhammad Hussain having been remarried; no grievance existed between the parties.

12. According to P. Ws. the assailants were on foot and they had not seen any vehicle. It would have been virtually impossible for the assailants to cover distance of more than 30/35 kms armed with deadly weapons without being noticed at late hours of night in the existence of various police check posts between Bhaiphero and Mohalanwala, Lahore. Both the P. Ws. admitted that they along with other P. Ws. joined the investigation, which was entrusted to Muhammad Ishaq Sindhu, DSP CIA the then. Muhammad Ishaq Sindhu, DSP, appeared as D.W.1 and stated on oath that after conducting thorough investigation and interrogation of both the parties he concluded that all the three accused were innocent. It is true that police opinion is not binding on the Courts but at the some time it cannot be thrown to the winds.

13. The recoveries of weapons in this case are of no consequences and cannot be used against the appellants. No recovery was effected from Arif. A .12-bore gun was shown to have been recovered at the instance of Sarwar. However, perhaps in view of the Medico-legal Report, during trial, Muhammad Hussain P.W. had stated that it was a .12-bore rifle. Needless to say that it was a ridiculous statement. Furthermore neither any empty nor any recovered weapon was sent to Forensic Science Laboratory. According to Exh.PN licensed .12-bore gun was recovered at the instance of Sarwar, while pistol shown to have been recovered at the instance of Anwar was a licensed weapon which belonged to his son Arif.

14. In the above noted circumstances, we are of the opinion that the occurrence took place in the mid of the night when the inmates of the house were asleep and they could not identify the assailants. The appellants were roped in this case merely on the basis of suspicions. Resultantly, these appeals are allowed. The judgment passed by the learned trial Court is set aside. The appellant are acquitted of all the charges. Muhammad Anwar-appellant would be released from Jail forthwith, if not required in any other case. Muhammad Sarwar and Muhammad Arif-appellants are on bail, their bail bonds are hereby cancelled and the sureties are discharged.

15. Consequently, the Murder' Reference is answered in the negative. Sentence of death is not confirmed. N.H.Q./M-35/L Appeals allowed.