2007 PLP 2749 (YLR)

CH. IFTIKHAR HUSSAIN, J.

Muhammad Ashfaq and Haseeb Rashid alias Goonga were tried under section 302 read with section 34, P.P.C. in the complaint case brought by Saeed Wasif Ali against them on 5-12-1994 at about 5-00 p.m. in Galli Ganga Bishan within the area of Police Station Baghbanpura, Gujranwala, in furtherance of their common intention committing the Qatal-e-Amd of deceased Muhammad Naeem alias Jugnoo by causing his death.

2. On the conclusion of their trial Muhammad Ashfaq was found guilty of the Qatal-e-Amd of the deceased while not Haseeb Rashid alias Goonga.

3. Muhammad Ashfaq vide the judgment rendered on 30-3-2000 by Mr. Kazim Ali, ' learned Sessions Judge, Gujranwala was convicted of the offence under section 302(b), P.P.C. and sentenced to death subject to confirmation by this Court and pay Rs.2,00,000 as compensation to the legal heirs of the deceased and in default to suffer five years' rigorous imprisonment. Haseeb Rashid alias Goonga was acquitted `of the charge giving him the benefit of doubt.

4. Muhammad. Ashfaq has brought Criminal Appeal (No. 462 of 2000) against his conviction and sentence, whereas Murder Reference (No. 148 of 2000) has been submitted to this Court for confirmation of his sentence of death.

5. As both these matters are outcome-of one and the same case, hence are being disposed of by this single judgment.

6. Briefly the facts relevant for the disposal of these matters are that complainant Saeed Wasif Ali (P.W.4) has made application Exh.PD to the effect that he is resident of Madni Mohallah, Gujranwala. On 5-12-1994, he along with his brothers Muhammad Naeem alias Jugnoo and Muhammad Naeem alias Billu had gone to the Ahata of Fazal Gujjar in Abadi Hakam Rai to take milk from him. At about 5-00 p.m. they reached the corner of Galli Ganga Bishan after taking milk. Muhammad Ashfaq and Haseeb Rashid alias Goonga armed with pistols came to Hafizabad Road on a motorcycle. They started firing. with their weapons. Muhammad Ashfaq fired at Muhammad Naeem alias Jugnoo, which hit on the back of his chest. He and Muhammad Nadeem alias Billu saved themselves by taking shelter of a wall. On the report of tires many people were attracted to the spot. On seeing them, these accused ran away on the motorcycle while firing. The motive behind the occurrence is that about 1 1/2 years ago a quarrel had taken place in their mohallah. Muhammad Ashfaq was injured in the same. Haseeb Rashid alias Goonga had got registered a false case against Muhammad Naeem alias Jugnoo. The respectables of the Mohallah had got effected, compromise between them and Muhammad Ashfaq. Muhammad Naeem alias Jugnoo was acquitted in that case by the Court. Muhammad Ashfaq had borne grudge in his heart over the same. He often used to say in the Mohallah that he will take revenge from Muhammad Naeem alias Jugnoo. On account of grudge over the same, Muhammad Ashfaq and Haseeb Rashid alias Goonga had fired upon Muhammad Naeem alias jugnoo in order to kill him. Muhammad Saleem and Safdar Ali, his brothers came there. They carried him to Civil Hospital, Gujranwala in injured condition. The doctor but due to his precarious condition referred him to Mayo Hospital, Lahore.

7. The case was investigated into. In the same the police found appellant Muhammad Ashfaq to be involved in the matter while not to Haseeb Rashid alias Goonga, who was declared innocent. Appellant Muhammad Ashfaq was challaned to the Court. However, complainant Saeed Wasif Ali feeling himself dissatisfied with the finding of investigation to the extent of Haseeb Rashid alias Goonga brought private complaint Exh.PF arraying him as well the accused. He and Haseeb Rashid were summoned to face trial. They both were formally charged under section 302 read with section 34, P.P.C. They pleaded not guilty.

8. The complainant examined the following witnesses at their trial:

Muhammad Saleem (P.W.I), Habib Ismail (P.W.2), Muhammad Nadeem Ahmad alias Billu (P.W.3), Saeed Wasif Ali (P.W.4), Arif Hussain Ayyas-Draftsman (P.W.5), Ashiq Hussain-Constable (P.W.6), Syed Qadeer Hussain-S.-I. (P.W.7), Lady Doctor Ayesha Shaukat (P.W.8), Dr. Rao Asif Ali Khan (P.W.9), Dr. Muhammad Maqsood (P.W.10), Muhammad Zikeria (P.W.11), Maqbool Ahmad-A.S.-I. (P.W.12); Pervaiz lqbal-Constable (P.W.13), Ehsan Ullah (P.W.14) and Jahangir Haider-Inspector/S.H.O. (P.W.15).

9. The complainant tendered in evidence the report Exh.PS of the Chemical Examiner, of the Serologist Exh. PT and Exh.PU of the Forensic Science laboratory.

10. The appellant and his acquitted co-accused denied the allegation appearing against them in the prosecution evidence. The appellant in reply to the question that why the case is against him has stated as follows:

"I got registered a criminal case against the deceased which ended in compromise. No untoward incident took place between myself and the deceased subsequently. The deceased suffered death in a lane. It was an unwitnessed killing. I was involved in this case on account of mere suspicion after consultation and due deliberation. "

11. He neither produced evidence in defence nor deposed on oath in disproof of the allegation appearing against him in the prosecution evidence.

12. The learned trial Court after hearing the parties came to the conclusion that the complainant/prosecution stood succeeded in proving the charge of the Qatal-e-Amd of the deceased. It so has convicted and sentenced him as mentioned above.

13. After hearing the learned counsel for the parties and perusing the record, we have found that the complainant in order to prove his case against the appellant and his acquitted eo-accused has mainly relied upon the eye-witnesses account medical evidence, motive and the recovery of crime-weapon pistol P.4.

14. The ocular account has been furnished by complainant Saeed Wasif Ali (P.W.4) himself and his brother Muhammad. Nadeem Ahmad alias Billu (P.W.3). They have narrated the incident almost in the line of complaint Exh.PF. The complaint Exh.PF is in the line of F.I.R. Exh.PD as regards the main occurrence and the motive.

15. Learned counsel for the appellant has contended that they were not only the interested witnesses but chance as well and so were worthy of no belief without independent corroboration while such corroboration is not available from the other evidence on the record. As against him, learned counsel for the State has contended that they have furnished a reasonable cause of their presence at the spot and so they were worthy of placing reliance.

16. We have examined these contentions in the light of the evidence on the record. There is no denying the fact that both the eye-witnesses are real brothers. The deceased was also their real brother. So, their relationship inter se and to the deceased is an established fact on the record.

17. There was background of hostility between them and the appellant and his acquitted co-accused prior to the occurrence. It is the stance- of both the eye-witnesses that about 1 1/2 years prior to the occurrence a quarrel had taken place in their Mohallal between appellant Muhammad Ashfaq on one hand and Muhammad Amin Butt on the other and the deceased had separated them and a case in respect thereof was registered and the appellant had involved Muhammad Naeem alias Jugnoo (deceased) in the same. This shows that there was some matter between the parties prior to the occurrence and the deceased was 'involved in that criminal case by the appellant. The complainant party, therefore, could be having cause of grudge against the appellant. These witnesses, therefore, were inimical towards him. They, therefore, .could validly be said to be .interested witnesses.

18. They were not the residents exactly of the place of occurrence. They resided at Mandi Mohallah, Circular Road, Gujranwala. The house of the complainant as per his own showing-is at some distance from the place of occurrence. According to him, it was at a distance of about l75 yards from the same. According to Muhammad Nadeem alias Billu, his house is at a distance of about 300/400 feet from the place of occurrence. All this shows that they were not the residents of the place of occurrence but at some distance from the same. They both have stated in their examination-in-chief that they along with the deceased had gone to the Ahata of Fazal Gujjar to take milk from him. It was the month of December. The occurrence according to them had taken place at about 5-00 p.m. It almost was late evening time. The going of three brothers together to take milk is something suspicious. Complainant Saeed Wasif Ali has stated in his cross examination that he had Doal with him for that purpose. He but in the cross-examination has stated that neither he produced the Doal before the police nor it was demanded from him by the police. This fact also belies his version that he and his brother Muhammad Nadeem alias I3illu and the deceased had gone to take milk and they Doal was with-him. So, the story of going of these three brothers together to take milk seemingly is not convincing this seems to be made up one just to show their presence at the spot. They, therefore; were chance witnesses as well. Their testimony could not be accepted without independent corroboration.

19. The occurrence as said above had taken place on 5-12-1994 at about 5-00 p.m. The report to the police was made at about 10-30 p.m. that day through application Exh.PD. There, thus was the delay of about 5 1/2 hours in making the report. The police station according to the complainant is at a distance of about 200 yards from the place of occurrence. According to him, Saleem and Safdar Ali, his brothers came there and they carried the deceased to Civil Hospital in injure condition. The complainant has stated that he had not accompanied the deceased to the hospital. He when had not accompanied the deceased to the hospital, he then could go to the police station immediately to report the matter but it was not done so. According to him, he had called his elder brother. Mirza Abdul Rashid from his house on telephone, who came there and had written application Exh.PD. All this shows that after the occurrence, all the brothers had got together and one of them had written application Exh.PD. The possibility; .thus of consultation and deliberation could not be ruled out because otherwise 5 1/2 hours time could not be consumed in lodging the report to the police, So, there is no satisfactory explanation available in the evidence of the eye-witnesses of such delay in lodging the F.I.R. This delay makes their version as not above doubt. These eye-witnesses, therefore, have not appeared to be worthy of belief readily.

20. Another noticeable fact in the evidence is that the deceased had lived for about 15 days after the incident. He had died on. 17-12-1994. It is but strange that f his no declaration about the occurrence had been recorded. It is in the evidence of Ehsan Ullah (P.W.14) that he on 9-12-1994, had inquired from the doctor that if he was fit to make statement, who replied in the negative. He but did not bother to inquire from him about his condition to make statement there till his death. This shows that the Investigating Officer had not taken proper care/interest in collecting evidence. Had he taken proper care of the matter, possibly some version from the own mouth of the deceased about the occurrence could come on the record. Anyway, this circumstance too is to be viewed with suspicion against the prosecution version.

21. Dr. Rao Asif Ali Khan (P.W.9) had examined the deceased when he was alive. He had found the following two injuries on his person:- (1) A fire-arm lacerated wound of entry with inverted margins measuring 1/3 x -1/3 c.m. x going deep with an abrasive collar around on the back of abdomen lumber region lower part in the mid line. (2) A fire-arm lacerated wound of exit with averted margins measuring 1.5 x. 1 c.m. on the front left side of abdomen at the level of umbilicus 7.5 c.m. from mid line.

22. Dr. Muhammad Maqsood (P.W.10) had conducted autopsy on the dead body of the deceased. He found the following injuries on the same:- (1) One surgically stitched wound 5 x .5 c.m. on front of neck in mid line 4 c.m. above supra sternum notch and 8 c.m. below chin (tracheotomy .wound) with one black stitch, ? (2) A surgically stitched wound healing. 2.5 c.m. long on front of abdomen sparing umbilicus on right side with 18 intact stitches 2 black sick and 16 blue nylon stitches 10 c.m. below ziphisternum and 10 c.m. above cubic symphysis. (3) A surgically open .incised scabbing wound .5 x .7 c.m. on front of right lower abdomen 10 c.m. from mid line to right and 5.5 c.m. above right anterior superior iliac spine. (4) A surgically opened incised scabbed wound .5 x .5 c.m. on front of left abdomen 7 c.m. left to mid line 9 c.m. above left anterior superior iliac spine. (5) A healing wound 1 x .7 c.m. on front of left abdomen 8.5 c.m. on the left of mid line 9 c.m. below costal margin end and 14 c.m. above left anterior iliac spine. (6) An opened healing wound .7 x .5 c.m. on back right side of abdomen adjacent to midline 11 c.m. above natal cleft and 46 c.m. below nape of neck.

23. This shows that the deceased had .received fire-arm injury on the bark of his abdomen/lumber region lower middle part in the mid line. This also shows that he perhaps had received Tire fire from his backside. 'The eye-witnesses have not explained that how the deceased received injury an his back. In ordinary course of things, he should have received injury on the front side of his body, if he had been fired at in the manner as stated by them. The medical evidence, thus is not fully supportive to the eye-witnesses account.

24. The motive has been narrated by both the eye-witnesses. According to them, about 1 1/2 years prior to the occurrence, a quarrel had taken place in their Mohallah between the appellant and said Muhammad Amin Butt and the deceased had separated them and the _appellant but had involved him in the case in respect of the same and subsequently the compromise was effected between them and the deceased was acquitted from the Court. The compromise when was effected, then the appellant could have no grudge against the deceased on brat count. Besides than this, it has also appeared from the evidence on the record that during the period of 1 1/2 years after that incident to the present one, no untoward incident had taken place between the parties. This also shows that there was no immediate cause/motive with the appellant to kill the deceased. The motive part of the complainant's story, therefore, is not appealing to the reason. It was too remote to .connect the appellant with reason) to take away the life of the deceased. The same, therefore, could not be used to corroborate the ocular account.

25. As regards the recovery of crime-weapon pistol P.4, the same is inconsequential as according to the report Exh.PU of the Forensic Science Laboratory, it was not in working order. The prosecution, therefore, could not use such recovery in corroboration to the ocular testimony.

26. We, therefore, from the above discussion are convinced that the complainant/prosecution did not succeed in proving the charge against the appellant beyond any shadow of reasonable doubt. He, therefore, was entitled to acquittal.

27. We, thus accepting his appeal set aside the impugned judgment to the extent of his conviction and sentence and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case.

28. The murder reference is answered in the negative. The sentence of death is not confirmed. N.H.Q./M-1414/L?????????????????????????????????????????????????????????????????????????????? Appeal accepted.