2003 PLP 808 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.202 of 1998 filed by Muhammad Arshad alias Boob, appellant who was convicted under section 302, P.P.C. and sentenced to death with further direction to pay Rs.25,000 as compensation, in default six months' R.I. by learned Additional Sessions Judge, Gujranwala vide judgment dated 2-3-1998. Murder Reference No.105 of 1998 for confirmation of death sentence or otherwise shall also be replied through this single judgment.

2. Occurrence' in this case had taken place at 2 a.m. (night) on 10-9-1993 at a distance of 5 miles from Police Station Nowshera Virkan, District Gujranwala while the matter was reported to the police through written complaint Exh.P.A. by Jaffar Ali at 4-30 a.m. at Chungi Karyal Road, Nowshera Virkan and the formal F.I.R. Exh.PA/1 was recorded by Ishaq Ahmad, Head Constbale.

3. Briefly stated the facts of the case are that Jaffar complainant was married with daughter of his paternal-uncle Sardar Khan about 4 years prior to the occurrence. The said Sardar Khan was murdered for which Muhammad Ashfaq son of Sardar Khan and Muhammad Arshad were challaned. Both these accused were convicted by the trial Court but were acquitted in appeal by the High Court. Mst. Tabasum Begum, paternal-aunt of the complainant had filed an appeal before the Supreme Court against the acquittal of Ashfaq and Muhammad Arshad but on the request of the relatives, Mst. Tabassum the step-mother of Muhammad Ashfaq had compromised with him. Upon this, Muhammad Arshad accused asked Muhammad Ashfaq to also effect compromise with him and to transfer six acres of land in his favour as promised but Mst. Tabassum did not agree to enter into any compromise with Muhammad Arshad accused. More so because the land had since not been mutated in favour of Muhammad Ashfaq hence he could not transfer the same in the name of Muhammad Arshad. About one week ago, Muhammad Arshad in the presence of Farzand Ali, brother of the complainant and Talib Hussain threatened Muhammad Ashfaq that he had either given the land too him nor had got the matter compromised, as such, he (Muhammad Ashfaq) would be killed. On the night of 10-9-1993 as per routine, the complainant was sleeping in the Haveli of his uncle while Muhammad Ashfaq was also sleeping on a cot near him. Muhammad Tufail and Khalid Mehmood were sleeping in the Baithak. The electric bulb was on in the courtyard. At about 2 a.m. (night) the complainant woke up on hearing the noise of a fire shot and saw that Muhammad Arshad armed with rifle .222 was standing near the cot of Muhammad Ashfaq and Ashfaq was injured. In the meanwhile, Muhammad Arshad fired two more shots on the person of Ashfaq which hit on different parts of his body. The occurrence was witnessed by complainant Jafar Ali, Muhammad Tufail and Khalid Mehmood. The injured rushed towards the Baithak to save his life but fell down on the ground near the door and died at the spot.

4. Investigation of the case was taken over by Tahir Nawaz, S.H.O. (P.W.7). He after registration of the F.I.R. went to the spot, prepared the site plan without scale Exh. PE, took into possession the blood-stained earth vide memo. Exh.PB, also secured cot P.1 vide memo. Exh.PC and also prepared inquest report Exh.PF and injury statement Exh. PG in respect of dead body of Muhammad Ashfaq deceased. Muhammad Arshad accused was arrested on 15-10-1993. The accused was found innocent by the S.H.O., DSP and the SP but was found as an accused by DSP Crime Branch, Lahore. Muhammad Arshad accused was finally challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned DDA, tendered in evidence report of the Chemical Examiner Exh.PK, report of the Serologist Exh.PL and closed the prosecution case. After that statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded innocence. After conclusion of the trial, the accused was convicted and sentenced as stated above.

6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that there is clear conflict between ocular account and the medical evidence. Further submits that in three consecutive investigation, the appellant was found innocent and that no crime empty was recovered from the spot. Adds that though the appellant exhausted the period of physical remand but no weapon of offence was recovered from him. Further adds that the appellant had w motive to kill the deceased. Also adds that there is no independent corroboration to the statements of the alleged eye-witnesses who apart from related are inimical towards the appellant. According to the learned counsel, that the occurrence having taken place at mid-night was unseen and that the complainant being a married person was residing in a separate house and was not present at the time of occurrence at the place of occurrence. Learned counsel submits that though in the F.I.R., there is mention of electric bulb in the courtyard, but in the site plan prepared by the draftsman, the said bulb has not been shown nor the same was taken into possession by the Investigating Officer. Further submits that it has come on record that when Tahir Nawaz, Inspector tried to arrest the complainant in this case, the complainant got the investigation transferred. Adds that the trial Court has not discussed the motive. Concluding his submissions, learned counsel for the appellant submits that the prosecution has miserably failed to prove its case. In support of his submission, learned counsel has relied upon 1996 SCMR 308.

7. Learned counsel for the State submits that the complainant was father-in-law of the, deceased; the complainant had three wives, except Muhammad Ashfaq all the issues were females and, that the present appellant and deceased were accused of murder case of Sardar Khan who was father of Muhammad Ashfaq but were acquitted by the High Court. He, however, concedes that Arshad had no motive to commit the murder of the deceased and that the prosecution story is full of doubts.

8. Learned counsel for the complainant submits that appellant is single accused, occurrence had taken place in the Haveli, the eye witnesses are the natural witnesses, ocular account is fully corroborated by the medical evidence and that in the investigation conducted by DSP Crimes the appellant was found as accused. He supports the judgment of the trial Court.

9. We have heard learned counsel for the parties. The occurrence had taken place at 2 a.m. (night) on 10-9-1993. Though it is mentioned in the F.I.R. that electric bulb was on in the courtyard but neither the said bulb was shown in the site plan prepared by the draftsman nor was taken into possession by the Investigating Officer. The complainant in the F.I.R. stated that he woke up on hearing the noise of fire-shot and I found Muhammad Arshad present armed with rifle .222 near the cot of Muhammad Ashfaq when he was already injured and thereafter further shots were fired which hit on different parts of body of Ashfaq but before the trial Court he stated that 5/6 shots were received by the deceased, after first shot he saw that deceased was sitting on the cot having his legs down, the appellant was in opposite direction of the deceased and the face of the deceased was upward but according to the report of post-mortem examination conducted by Dr. Arshad Javed P.W.9, there were only two entry wounds on his back. So there is clear conflict between ocular account and the medical evidence. Further according to the complainant, the appellant was armed with .222 rifle which is negated from the fact when the doctor made the following statement in cross-examination:-- "It is correct that Injury No.4 is exit of Injury No.

1. Injury No.3 is the exit wound of Injury No.2. It is correct that the two' entry wounds given by me regarding injury No.2 made an exit wound in the shape of. Injury No. 3 and for that reason, I would say that these wounds were caused by the pellets shot through a shot gun and were the result of one shot."

9. Farzand Ali P.W.4 while appearing before the learned trial Court stated that his family was inimical towards the appellant. More so, the present appellant and deceased Ashfaque were named as an accused for the murder of Sardar Khan, who was father-in-law of the complainant and father of deceased. Ashfaque and Arshad both were tried together and were awarded the sentence of Death and Imprisonment for Life respectively, in an appeal they were acquitted by this Court, so in our view, the appellant had no motive to kill the deceased who was his co- C accused in the murder case of Sardar Khan. From the facts and circumstances of the case which we have gathered from the record, for the murder of the deceased were that the deceased was the only male issue while all the other legal heirs were females. The reasons given by the appellant for his involvement in the instant case would be of great avail to come to a just conclusion and the same is reproduced herein:-- "The father of the deceased of this case Sardar Khan was married three times. From the first wife, he had a daughter, from second wife, he had two daughters and one son namely, Ashfaque deceased and from third wife, Mst. Tabbussam Begum, he had one daughter and one son. Jaafar Ali complainant of this case is married to the daughter of Sardar Khan deceased. Farzand Ali P. W. of this case is brother of Jaafar Ali, mother of Khalid P. W. is the daughter of Sardar Khan deceased. All the witnesses are related to each other and inimical to me because on 6-5-1998, Sardar Khan father of Ashfaque deceased was murdered and Ashfaque deceased was challaned in that case and convicted by the learned trial Court but acquitted by the Hon'ble High Court in appeal. Sardar Khan deceased was owner of 87 acres of land. During the pendency of trial and appeal, Mst. Tabbassum Begum, who was the step mother of Ashfque deceased got transferred the mutation of land to her name as well as other heirs. Ashfaque did not get the share of land as he was allegedly, the murderer of his father but after acquittal, Ashfaque deceased demanded his share of land from his step-mother, Mst. Tabbassum Begum as well as other heirs. Mst. Tabbassum Begum filed an appeal against the acquittal and got stay of division of property. All the heirs were not ready to give the share to Ashfaque deceased. Ashfaque was threatened by all the heirs of the deceased Sardar Khan including Jaafar Ali complainant, his wife Samina and Mst. Tabbassum Begum step-mother of Ashfaque deceased. They wanted to eliminate him so they made a plan to trap Ashfaque deceased. For this purpose, Mst. Tabbassum Begum had compromised with Ashfaque deceased and promised him to give him his due share but in the meanwhile, they hired a murderer who murdered Ashfaque deceased at the instance of the above-said persons and they falsely roped me in this case as, I was the friend of Ashfaque deceased." A bare perusal of the above statement would show that the story put forward by the defence appears to be more plausible and convincing one as compared to the story introduced by the prosecution. The statement of Tahir Nawaz, Inspector/Investigating Officer P. W.7 is also relevant for reaching at a just conclusion. A portion of his statement in cross-examination is reproduced below:-- "I re-investigated this case to trace out the, real culprits and Jaafar Ali complainant was interrogated on 3-3-1994, who stated before me that Muhammad Ashfaq deceased had become threat to their lives after his acquittal who should be eliminated from the scene and as such he alongwith wife and mother-in-law Tabbassum Begum conspired and engaged one Saleem alias Churra, resident of Village Khara as hired assailant against the consideration of Rs.1,20,000, who murdered Ashfaque deceased at the instance of said person. The learned D.D.A., representing the State assisted by the learned counsel for the complainant had objected to the above question and answer on the ground that the statement of the complainant under section 161, can be questioned for the purpose of contradiction and no other statement before the police can be referred to. This matter would be answered at the time of final argument. I had declared accused present in the Court innocent and, I wanted to arrest Jaafar Ali complainant, his wife and Mst. Tabbassum Begum and Saleem Churra in this case by adding section 109, P.P.C. but the investigation of this case was transferred to Crime Branch, Lahore." From a perusal of the above statement, it is clear that when the complainant came to know they are being arrested in this case by Tahir Nawaz, Inspector on the ground that they had got the deceased murdered through a hired assassin in order to take over possession of the land which was inherited by Muhammad Ashfaq deceased, they got the investigation transferred to Crime Branch, Lahore. No doubt the opinion of the Police is not binding on the Courts but in some cases it has the relevancy. Unfortunately, in our society, in order to usurp the property people take the services of hired assassins. Neither any crime empty was recovered from the spot nor the weapon of offence was taken into possession on the pointation of the appellant though the appellant exhausted the full period of his physical remand. In these circumstances, the learned counsel for the State was right in submitting before us that the case of prosecution is of doubtful nature. Taking into consideration the motive having not been proved, non-recovery of any empty from the spot and weapon of offence on the pointation of the appellant, clear conflict between ocular account and the medical evidence, enmity between the family of Farzand Ali P.W.4 and the appellant, the irresistible conclusion would be that the prosecution has miserably failed to prove its case against the appellant rather the defence has been successful in creating dents in prosecution story, as a result whereof, appeal filed by the convict appellant is set aside, conviction and sentence recorded against him by the learned trial Court is set aside the death sentence of the appellant is not confirmed, Murder reference is replied in the negative and he shall be released forthwith if not required to be detained in any other case. N.H.Q./M-1610/L Appeal accepted.