2007 PLP 1234 (YLR)

IJAZ AHMAD CHAUDHRY, J.--Through this judgment we intend to dispose of Criminal Appeal No.174-J of 2001 filed by Muhammad Ameen appellant who. has been convicted under section 302(b), P.P.C. and sentenced to death with the direction for payment of fine of Rs.50,000 payable to the heirs of the deceased under section 544-A, Cr.P.C. or in default of payment thereof, he has to further undergo S.I. for six months and the Murder Reference No.529 of 2001 preferred by the learned trial Court for confirmation of death of the convict, as both the matters have arisen from the same judgment dated 26-4-2001 passed by the learned Additional Sessions Judge, Gujranwala, while disposing of the case F.I.R. No. 56 of 1999 registered on 2-7-1999 at 12-15 p.m. at Police Station Ferozewala, District Gujranwala, on the statement of Muhammad Maalik P.W.6 brother of the deceased Muhammad Ashiq, for an occurrence which had taken place on the same day at 11-30 a.m. The statement of Muhammad Maalik P.W.6 under section 154, Cr.P.C. was recorded by Muhammad Akram, S.-I./S.H.O. Police Station Ghakkhar, P.W.10.

2. The brief facts as narrated in the F.I.R. are that on 2-7-1999 the complainant along with his brother Zafar Iqbal and Riasat Ali was present at his Dera. His brother Muhammad Ashiq had gone to irrigate his Moonji Crop towards west of the Dera at a distance of about one acre, when at about 11-30 a.m. Muhammad Ameen (appellant) having carbine in his right hand came there from his Dera which was two acres away towards south and on reaching there made Lalkara to Muhammad Ashiq that he would not let him go alive because he had been abstaining him from taking share of land. On hearing this Lalkara the complainant and his above said brothers rushed from their Dera towards Muhammad Ashiq but were 15/16 steps short of him when Muhammad Ameen made tire with his carbine at Muhammad Ashiq which hit him on his front of chest. Muhammad Ashiq started running towards the complainant when Muhammad Ameen repeated the fire which hit Muhammad Ashiq at his back, who fell down and Muhammad Ameen fled away towards his Dera. The complainant and his brothers were taking Muhammad Ashiq in injured condition to Civil Hospital, Gujranwala, but he died in the way.

3. The motive behind the occurrence was that Muhammad Tufail father of Muhammad Ameen had given his all property to his mother Naziran Bibi 3/4 years ago and himself shifted to Hyderabad and Muhammad Ameen had been demanding the said land from her upon which Nasiran Bibi told this fact to Muhammad Ashiq who abstained Muhammad Ameen from doing so upon which he had borne grudge and committed the above said offence.

4. Muhammad Akram, S.-I./S.H.O. P.W.10 after recording the F.I.R. Exh. PC went to the Civil Hospital, Gujranwala, prepared the injury statement of the deceased Exh.PH, inquest report Exh.PJ and sent the dead body to mortuary through Muhammad Boota Constable and then went to the spot along with complainant, inspected the spot, took into possession blood stained earth vide recovery memo Exh.PD, two crime empties from near the places of occurrence which were taken into possession vide memo. Exh.PE, prepared rough site-plan Exh.PK and also recorded the statement of the witnesses under section 161, Cr.P.C. Then he went to police station and handed over blood-stained earth and crime empties to the Moharrar.

5. The appellant was arrested on 30-7-1999. On 3-8-1999 he after making disclosure in police custody led the recovery of carbine which was taken into possession vide memo. Exh.PA.

6. After completion of the investigation report under section 173, Cr.P.C. was submitted in the Court. The copies of the statements recorded under section 161, Cr.P.C. and also the documents were supplied to the appellant under section 265-C, Cr.P.C. and then the learned trial Court framed the charge against the appellant which was denied by him and he claimed to be tried.

7. The prosecution in order to prove the case produced as many as 10 witnesses. The ocular account had been furnished by Muhammad Maalik P.W.6 and Zafar Iqbal P.W.7. Dr. Muhammad Anwar P.W.8 had conducted the post-mortem examination. Safdar Ali Patwari P.W.9 prepared site-plan and investigation had been conducted by Muhammad Akram, S.-I./S.H.O. P.W.10. The remaining witnesses are of formal nature.

8. The appellant in his statement under section 342, Cr.P.C. denied the allegations and to a question that "why this case against you and why the P.Ws. have deposed against you"? Muhammad Ameen (appellant) made the following reply which is reproduced as under:-- "In fact one Iqbal son of Rafique had been involved in the murder of Rafique deceased which was a blind murder and un-seen occurrence. Ashiq was an illegal occupant of the land which belongs to me and the land is still in the possession of the complainant party. The dead body of Ashiq deceased was found outside the village and the complainant party falsely involved me in this case because to keep their illegal possession on my land and to black-mail and because of doubt. Ashfaq son of Rafique who had been involved in the murder of Rafique is a P.O. Later on it became in the knowledge of the complainant party that Rafique had managed the murder of Ashiq deceased because of previous enmity of murder so to keep the balance Ashfaque son of deceased and other unknown persons committed the murder of their opponent Rafique and the complainant party now is killing two birds with one stone by involving me in this case by fabricating false evidence and also prosecution story and false motive and the P.Ws. are closely related to the complainant so they have deposed falsely against me and have falsely implicated me in this case." However, he did not appear in his defence under section 340(2), Cr.P.C. and also did not produce any defence evidence. The learned trial Court after hearing the arguments of both the parties passed the impugned judgment of conviction and sentence, which is being assailed through the instant appeal and the murder reference.

9. Learned counsel for the appellant contends that both the eye-witnesses are interested witnesses, who were related inter se and with the deceased and they had falsely implicated the appellant in the case in order to grab the property of his father. It is contended that witnesses were not present at the spot, otherwise they would have stated about receiving of injuries by the deceased correctly; that the witnesses had made improvement on material point, who are not truthful witnesses and the recovery of weapon had been effected from an open place in violation of section 103, Cr.P.C. which recovery is not worthy of reliance. It is further contended that the motive also could not be proved and the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and the criminal appeal may be accepted and the appellant may be acquitted.

10. Learned counsel for the State on the other hand has opposed this appeal on the ground that both eye-witnesses were natural and independent witnesses, whose presence at the spot had been established beyond any shadow of doubt and they had made consistent statements regarding the place, time of occurrence and the manner in which the occurrence had taken place; that the matter was reported to the police immediately after the incident in which the name of the appellant as single accused with the role played by him has been mentioned; that the ocular account furnished by P.W.6 and P.W.7 is corroborated by the recovery of the weapon effected from the appellant subsequently which according to the report of Forensic Science Laboratory Exh.PN had matched with the -empties recovered from the spot and that the prosecution had proved the case beyond any shadow of doubt, hence the appeal may be dismissed.

11. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution.

12. The occurrence in the present case had allegedly taken place on 2-7-1999 at about 11-30 a.m. According to the prosecution the deceased had been taken to Civil Hospital where he died and then the complainant had gone to police station, whose statement was recorded at 12-50 p.m. at the police station on the, same day. The appellant alleged to be armed with carbine and fired at the deceased. First shot fired by him hit the deceased on the front of his chest and when the deceased tried to run away towards the witnesses, second shot was fired by Muhammad Ameen appellant hitting the deceased on his back, who fell down on the ground. The same statement was got recorded by Zafar Iqbal P.W.7 under section 161, Cr.P.C.

13. The post-mortem examination was conducted by Dr. Muhammad Anwar, P.W.8 on the same day at about 8-30 p.m. and he observed the following injuries on the person of the deceased:-- INJURIES (1) Multiple fire-arm lacerated (entry) wound in area of 7 c.m. x 9 c.m. on left lumber region including vertebrae colum eight in number measuring 75 c.m. x 75 c.m. each having inverted margins. (2) Fire-arm lacerated wound of exit with everted margins 1/2 x 1/3 c.m. on the left side of front of lower chest 5 c.m. from the midline. (3) Fire-arm lacerated wound of exit with everted margins above the umbilicus on left side at abdomen.

14. After perusal of the injures it is found that the deceased had received only one entry wound i.e. Injury No.1 on the left lumber region and the diagram of the injury shows that the said injury was received by the deceased on his back. The remaining two injuries on the left side of front of lover chest and on the left side of abdomen were exit wounds. So the story narrated by the eye-witnesses before the police in their statements under sections 154, Cr.P.C. and 161, Cr.P.C. that the deceased had received the first injury of the chest on the front side has been falsified and the medical evidence is in contradiction with the ocular account. Had the witnesses present at the spot and seen the incident, they would have mentioned that the deceased had received single injury on the back. According to the medical evidence, only one fire-arm injury had been received by the deceased but the eye-witnesses claimed that he received two fire-arm injuries. This fact also contradicted the ocular account. So the presence of both the eye-witnesses at the spot as claimed by them has been falsified by the medical evidence.

15. Both the eye-witnesses at the trial had also tried to improve their statements to bring it in line with the medical evidence. Instead of mentioning in their statements that the deceased had received first injury on the front of chest as claimed by them in their statements before the police they had stated hat first shot was made by the appellant with carbine, but they did not see that fire shot hitting Ashiq. Both the eye-witnesses were confronted with their previous statements regarding such improvement, which no doubt was dishonest improvement in order to bring the prosecution case in line with the medical evidence and such witnesses cannot be termed as truthful witnesses and cannot be relied upon for maintaining conviction in a case entailing the capital sentence.

16. Admittedly, P.W.6 and P.W.7 are real brothers and deceased was also their real brother. So the relationship between the witnesses and the deceased was, very close and it has also been stated by the complainant in the F.I.R. that father of the deceased 3/4 years ago had gone to Hyderabad Sindh after handing over all his property to Mst. Naziran Bibi grand-mother of the deceased and Muhammad Ameen had been demanding the said property from Mst. Naziran Bibi. In the F.I.R. the motive was narrated that as the appellant was teasing the grandmother and he admonished the appellant and due to this reason he had murdered the deceased. On the other hand, while appearing in the Court the same version had been put in a different manner that Mst. Naziran Bibi and Ashiq deceased were "Chacha Zaad" and he had been abstaining Mst. Naziran Bibi to give land to the accused. We find that there is some substance in the plea raised by the appellant that the suit land owned by father of the appellant was in possession of the deceased and the complainant party and it was an un witnessed occurrence and the deceased had been murdered by Muhammad Rafique his enemy, but the appellant had been falsely implicated in the present case in order to lingering on their possession over the suit property. Said Muhammad Rafique was murdered by Muhammad Ashfaq son of the deceased subsequently and he became fugitive from justice.

17. Both the eye-witnesses did not make consistent statements about the involvement of Muhammad Ashiq in the murder of Muhammad Rafique deceased. Muhammad Maalik P.W.6 during the cross -examination stated that Ashfaq was son of the deceased but denied that he was declared P.O. for the murder of deceased Muhammad Rafique. On the other hand Zafar Iqbal P.W.7 explained that Muhammad Rafique was murdered subsequently and in the said murder case one Muhammad Ashfaq son of the deceased and Allah Rakha were involved and Muhammad Ashfaq having become fugitive from justice had been declared P.O. in the days of incident. Both the eye-witnesses made contradictory statements with each other regarding this fact, which shows that they had not spoken the whole truth. The presence of both the eye-witnesses at the spot has also become doubtful as according to P.W.6 Muhammad Maalik complainant he remained present at his Dera on the day of incident since 10-00 a.m. and same was the position of Zafar Iqbal and Liaquat P.Ws. and he was irrigating and planting the crop in his land adjacent to the Dera before 10-00 a.m. Zafar Iabal and Liaquat P.Ws. were with him. Ashiq deceased had left the Dera 10 minutes before the occurrence and gone to his land. It is also stated that before the occurrence Ashiq also left the Dera at 8-00 a.m. and he came back to the Dera at 10-00 a.m., but they did not check their meal or anything at the Dera. P.W.7 during the cross-examination stated that the deceased and the witnesses including himself were present at the spot and all of them including the deceased had left the Dera together on the day of occurrence for village Mokhal Sindhwan and they reached back to Dera at about 10-00 a.m. According to him, they had taken "Saag and Roti" and came back to their Dera. The details regarding the presence of witnesses explained by them at Dera were different with each other.

19. We have also noticed that registration of the F.I.R. with promptitude as claimed by the prosecution is also doubtful. According to the I.O. immediately after the registration of the F.I.R. he had visited the mortuary where the dead body was lying. Then he prepared the documents immediately and also left for the place of incident while handing over the said documents to a constable, but the post-mortem hard been conducted after about 7/8 hours at 8-00 p.m. without any reasonable explanation. Even otherwise, we have observed that inquest report Exh.PJ and injury statement Exh.PH do not bear signatures and stamp of the doctor. Had these documents been prepared before the doctor, these documents, must have been signed and stamped by the doctor. So the story that the F.I.R. was registered immediately after the occurrence has become doubtful. We have also noticed that the I.O. had prepared rough sketch of the site-plan Exh.PK and also got prepared site-plan Exh.PG through Safdar Ali Patwari, but both these documents do not find mention of names of the witnesses or the appellant and the place from where the fire was made at the deceased by the appellant. We have also noticed that according to P.W.7 Zafar Iqbal I.O. had collected blood-stained earth with the help of tin container of Mobil Oil and taken into possession vide recovery memo. Exh.PD and two empties were also taken into possession by him vide memo. Exh.PE, which were put in the pocket by the I.O.

20. We have perused the recovery memo. Exh.PD for securing blood-stained earth and Exh.PE through which two empties were taken into possession by the I.O. at the time of the first visit of the place of incident by him. Both the documents had been signed by Zafar Iqbal in Urdu, but while appearing as P.W.7 Zafar Iqbal claimed that he was illiterate and he had never gone to school. According to P.W.7 he could not put signatures on any document and only affix his thumb impressions. So it is a mystery that how the signatures were put on the documents Exh.PE and Exh.PD and it seems that all these documents appear to have been fabricated by the I.O. Effecting of the recovery of empties on 2-7-1999 as claimed by the prosecution is also in contradiction with the statement of Muhammad Akram, S.-I./S.H.O. He stated that the empties were recovered on the next day, but the recovery memo. shows that the said recovery was effected on 2-7-1999 and not on 3-7-1999 as claimed by the I.O. Even otherwise after effecting the recovery of two empties, both were kept in "Maal Khana" but those were sent to the office of Forensic Science Laboratory after 20 days and the appellant was arrested on 30-7-1999. Even otherwise, the recovery of two empties from the spot was doubtful as according to medical evidence only one entry wound on the back of the deceased was found, but in their statements made before the police the complainant and the other witnesses claimed that two entry wounds were received by the deceased in the chest and the back. The wound on the chest was declared exit. It appears that to support the allegation of the P.Ws. of making two fires during the incident by the appellant the evidence of recovery of two crime empties from the spot was created, which cannot be believed coupled with the other facts mentioned above.

21. Next piece of evidence is the effecting of the recovery of carbine from the appellant. According to the prosecution the carbine was recovered on 3-8-1999 but it was sent to the office of Forensic Science Laboratory on 20-11-1999. To prove the said recovery of the weapon the prosecution produced Muhammad Ameen constable who appeared as P.W. and stated that the carbine was recovered lying under earth with a wall of a Darbar in a graveyard near Maachike Chowk. During the cross -examination, it was clarified that the recovery was effected from open place, the earth was dug out about one and half feet with Kassi and Abadi was at a distance of one acre. The other recovery witness Maqbool Ahmed constable P.W.4 though stated that the recovery had been effected from graveyard yet he did not disclose that the recovery was effected after digging out the earth. He also denied that the recovery was effected from an open place. Both the recovery witnesses are also pound in contradiction with each other regarding the disclosure of effecting the recovery of weapon subsequently by .the appellant. According to P.W.1 the disclosure was made at 8/9-00 a.m. while according to P.W.4 Maqbool Ahmed it was made at about 4-30 p.m. The I.O. further falsified the statement of both the witnesses. All the three witnesses produced by the prosecution to prove the recovery of weapon are found in contradiction with each other. Even otherwise according to the P.W. there was Abadi at a distance of one acre from the place of incident but Muhammad Akram, S.-I./S.H.O. P.W.10 claimed that he did not call any person to join the recovery proceedings. As such the said recovery had been effected in violation of section 103, Cr.P.C. Even otherwise, the recovery witnesses are not found trustworthy and the recovery of weapon from the appellant cannot be used as a corroborative piece of evidence.

22. The motive in the present case also has not been proved. The motive is a double edged weapon if the accused had a motive to commit a crime the same can also be a reason for his false implication. Except for the oral statements of the eye-witnesses, who are proved to have not spoken the whole truth no documentary evidence has been produced in this regard. On the other hand, eye-witnesses appeared to have a motive to falsely implicate the appellant in the present case in order to prolong the possession over the property owned by the father of the appellant.

23. As a result of the above discussion, we find that the prosecution had not been able to prove case against the appellant beyond any shadow of doubt and the benefit of doubt has to go to the appellant. Resultantly, this Criminal Appeal No.174-J of 2001 is accepted and the impugned judgment of conviction and sentence passed by the learned trial Court is set aside and the appellant is acquitted, who shall be set at liberty if not required in any other criminal case.

24. The death sentence is not confirmed and Murder Reference No.529 of 2001 for confirmation of the death sentence is replied in the negative. H.B.T./M-559/L Appeal allowed.