2007 PLP 1203 (YLR)

IJAZ AHMAD CHAUDHRY, J.--This judgment will dispose of Criminal Appeal No.380-J of 2001 filed by Muhammad Ishaque appellant against his conviction and sentence along with Murder Reference No.671 of 2001 sent by the learned trial Court under section 374, Cr.P.C. for confirmation of death sentence of the said appellant as both these matters have arisen from the same judgment dated 24-9-2001 through which learned Additional Sessions Judge, Gujranwala has convicted the appellant under section 302(b), P.P.C. and sentenced him to death with compensation of Rs.2,00,000 payable to the legal heirs of Muhammad Ayub deceased under section 544-A, Cr.P.C. or in default of payment thereof to undergo S.I. for six months. However, the appellant had been acquitted from the charge under section 379, P.P.C. Likewise Mst. Bilquees Begum and Shahbaz co-accused were acquitted through the same judgment.

2. The occurrence in the present case had taken place at 10-00 p.m. on 18-5-1997 within the area of Daaulanwali, 12 miles away from Police Station Saddar Gujranwala and F.I.R. (Exh.PB) was recorded on the statement of Mst. Hafeez Bibi (P.W.9) sister of Muhammad Ayub deceased on 19-5-1997 at 3-15 a.m. (night) by Muhammad S.-I. (P.W.8).

3. The brief facts as narrated in the F.I.R. (Exh. PG/1) by Mst. Hafeezan Bibi complainant (P.W.9) are that on 18-5-1997 at about 9-00 p.m. she along with her brothers Muhammad Ayub (deceased), Muhammad Safdar and Muhammad Anwar was sitting in the Dera of Mahmood Ahmad and were talking to each other. Muhammad Ayub (deceased) and Muhammad Ahmad were lying jointly on a cot whereas the complainant along with her two brothers was sitting on a cot. At about 10-00 p.m. Muhammad Arif alias Bhutto (accused since P.O.), came there while armed with 8 MM rifle and started discussing with Mahmood Ahmad, regarding purchase of buffalo and also sat on the cot. After a short while he stood up and with his rifle inflicted a fire-shot at the complainant's brother Muhammad Ayub which hit him on right side of the chest. The complainant and others tried to run but by that time Muhammad Ishaque appellant, Came there, while armed with .7MM rifle, who fired a shot at the complainant's brother, which hit on his abdomen under the 'Naf'. Thereafter Muhammad Munir accused also came at the spot, with 7MM rifle, who fired at the arm of the deceased whereas Shahbaz acquitted accused while armed with .12 bore gun and standing in the shade of `Kikar Tree', had been firing. The complainant had further stated that she and others had identified the accused in the electric bulbs lights. On hue and cry of the complainant and others, the accused fled away from the spot while firing. While decamping from the spot, the accused had also taken a licensed .30 bore pistol, a wrist watch and a golden ring, belonging to Muhammad Ayub deceased.

4. The motive behind the occurrence was alleged that previously Muhammad Ayub deceased caused fire-arm injury to Muhammad Ishaque appellant and the case was pending and due to the said grudge and enmity, the accused, with common intention, had committed the Qatl-i-Amd of complainant's brother by firing. The complainant had further stated that whole the plan of the murder was prepared in the house of Mst. Bilqees Bibi acquitted accused and the accused after the occurrence had also gone to her house. The occurrence was witnessed by the complainant and her brothers.

5. After the recording of the statement of the complainant Muhammad Ashraf, S.-I. (P.W.8) along with the police officials went to the spot, prepared the inquest report Exh.PJ, injury statement Exh.PK and sent the dead body to the mortuary for post-mortem examination. He also collected two empty cartridges under-neath the dead body and three empties from other place and took the same into possession vide memo. Exh.PF attested by the P.Ws. He also drafted the application for post-mortem examination Exh. PL and thereafter recorded the statements of the P.Ws. under section 161, Cr.P.C. The constable presented before him the last-worn blood-stained clothes of the deceased containing Tahband, Vest, Kameez and Puma, which were taken into possession vide memo Exh.PE attested by the P.Ws. He also collected blood-stained earth from the spot with the help of cotton and made into a sealed parcel and took into possession vide memo. Exh.PG, attested by the P.Ws. He searched for the accused but failed. He also prepared rough site-plan of the place of occurrence and got prepared scaled site-plans Exh.PD and Exh.PD/1 from the draftsman. Thereafter was transferred from the police station on 6-7-1997, and investigation was entrusted to Zafar Ullah A.S.-I. who investigated the case from 24-7-1997 to 5-3-1998.

6. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. were supplied to the appellant and his co-accused, the charge was framed which was denied by him and his co-accused and they claimed to be tried. The prosecution in order to prove its case produced as many as 11 witnesses. The ocular account was produced through the statements of Muhammad Safdar (P.W.7) and Mst. Hafeezan Bibi (P.W.9), the medical evidence was furnished by Dr. Abdul Aziz Tarar (P.W.4) while the investigation was conducted by Muhammad Ashraf S.I. (P.W.8). The remaining witnesses are of the formal nature and need not to discuss here.

7. After the close of prosecution evidence the statements of the appellant and his co-accused were recorded under section 342, Cr.P.C. in which they denied the allegations and professed their innocence and to a question that "why this case against you and why the P.Ws. have deposed against you", Muhammad Ishaque appellant made the following reply which is reproduced as under:- "Deceased and his family members had a longstanding enmity with other different people. Murder of Muhammad Ayub (deceased) was made in the mid of night in darkness by unknown assailants. The occurrence was un-witnessed. When the real culprits were not traced, the complainant falsely involved me in this case after consultation with her brothers in connivance of police. P.Ws. are closely related inter. se and are inimical towards me." The appellant did not opt to make statement under section 340(2), Cr.P.C. and denied to produce any defence evidence.

8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through the instant appeal.

9. Learned counsel for the appellant contends that the medical evidence is in contradiction with the ocular account as no injury was found on the person of the deceased attributed to the appellant with 7 MM rifle on the abdomen of deceased; that Mst. Hafeezan Bibi (P.W.9) and Muhammad Safdar (P.W.7) were real sister and brother of the deceased Muhammad Ayub, who had previously enmity with the appellant as the deceased according to the prosecution witnesses had fired at the appellant and he had been falsely implicated. It was a night occurrence and no source of light had been described by the witnesses and the presence of the witnesses at the spot also had become doubtful; and that the ocular account was false and the recovery alone was not sufficient to connect the appellant with the commission of the crime.

10. Learned counsel for the State on the other hand have opposed this appeal on the ground that the occurrence in the present case had taken place at 10-00 p.m. and F.I.R. was got lodged at 3-15 a.m. on the same night which shows that the F.I.R. was lodged with promptitude; that medical evidence cannot be preferred over the ocular account as the witnesses were present at the spot; that the prosecution has produced two witnesses who are residents of the same locality and their presence at the spot was not doubtful and they had given the details of the incident and the ocular account is corroborated by the recovery from the appellant, whose conviction and sentence may be maintained.

11. We have heard the arguments of learned counsel for the parties and also perused the record.

12. The occurrence in the present case according to the prosecution had taken place on 18-5-1997 at 10-00 p.m. and on the statement of Mst. Hafeezan Bibi (P.W.9) sister of the deceased Muhammad Ayub, which was recorded at 2-10 a.m. (night) by Muhammad Ashraf, S.-I. (P.W.8) the formal F.I.R. had been recorded at 3-15 a.m. (night). It is stated by the complainant that she was the wife of Muhammad Arif, resident of Thatha Chawan and she had come to see her native village 8/9 days ago. We are not satisfied that the F.I.R. was got lodged with promptitude as the post-mortem examination had been conducted with the delay at 12-30 p.m. without any reason. The possibility cannot be ruled out that the time was consumed in fabricating the story and the F.I.R. cannot be used as a corroborative piece of evidence.

13. To prove the ocular account the prosecution had produced Muhammad Safdar (P.W.7) and Mst. Hafeezan Bibi (P.W.9), who being brother and sister are related inter se and with the deceased. It was also an admitted fact that the appellant had been earlier fired at by the deceased and case was registered against the deceased. Thus, the P.Ws. had previous enmity with the appellant as well and they can be termed as interested witnesses. Admittedly, it was a night occurrence and in the F.I.R. it was got mentioned that at the Dera of Mahmood Ahmad, light was on and there was also light in the house of Niaz Khokhar and there was sufficient light at the time of incident but we have found that during the investigation, the police had not taken into possession any bulb and neither in the rough site-plan nor in the site-plan (Exh.PD and E)ch.PD/1) the place where the bulb was allegedly burning was shown. Both the eye-witnesses also failed to give any reason for their presence at the spot who at the most were chance witnesses as the occurrence had not taken place in their Haveli or in their house, where they usually could be present but it had taken place in the Haveli of Mehmood Ahmad, which according to the P.Ws. was at a distance of 30 feet from their residence. Their presence at the spot could only be established, if they satisfy this Court through cogent reason and through sufficient explanation for their presence at the spot. No such explanation had been given in the statements under section 154, Cr.P.C., by Mst. Hafeezan Bibi (P.W.9) and in the statement of Muhammad Safdar (P.W.7) recorded under section 161, Cr.P.C. but at the trial Muhammad Safdar had improved his previous statement by stating that they had come at the place of incident in order to purchase a buffalo. It was also claimed by Mst. Hafeezan that she had come to purchase buffalo and she along with her brother and the deceased had gone to the place of incident. Such an important fact and explanation for their presence at the spot had not been got mentioned in the earlier statements, which poles apart about their version for being present at the spot. Both the eye-witnesses were confronted with their previous statements on this material point. Mehmood Ahmad, who was owner of the said Haveli and according to the eye-witnesses, he was present at the spot at the time of incident, while sitting on the same cot along with the deceased and the latter was fired at was neither associated in the investigation by Muhammad Ashraf S.-I. (P.W.8), nor he was produced by the prosecution at the trial; could be an independent and was natural witness being resident of the place of occurrence. By his non-production as a witness the inference could be drawn against the prosecution that occurrence might have not taken place in the manner narrated by the P.Ws. Even otherwise we find that the ocular account furnished by both the eye-witnesses was not believable as in the dark hours at 10-00 p.m. both the eye-witnesses claimed to have identified rifle 7mm in the hand of appellant, rifle 8mm in the hand of Muhammad Arif alias Bhutto and gun .12 bore in the hand of Shahbaz when the occurrence according to the complainant had lasted only within one minute and all the accused fired jointly. Both the eye-witnesses in such circumstances, could not see the accused and attributed specific injuries to them on the person of the deceased. The possibility cannot be ruled out that after the examination of the dead body, these injuries were divided on the accused. The medical evidence is also found in contradiction with the ocular account. The prosecution has produced Dr. Abdul Aziz Tarar (P.W.4) who conducted the post-mortem examination of the deceased Ayyub on 19-5-1997 at 12-30 p.m. and had given the time between the death and post-mortem examination within about 12 to 14 hours. On the other hand, Muhammad Ashraf S.-I. (P.W.8) admitted that after recording the statement of the complainant at the place of incident he had prepared the documents and dispatched the dead body to the mortuary and why the post-mortem was delayed, if the dead body had reached at the mortuary early in the morning, which also shown that the F.I.R. was not lodged with promptitude as claimed by the witnesses and the prosecution. The fire-arm injury attributed to the appellant on the abdomen of the deceased has been found as an exit wound. According to the doctor, injury No.1 was an entry wound on the left chest and Injury No.2 was its exit wound on the right lateral side of chest. The injury attributed to Muhammad Arif was also an exit wound. We have also seen the diagram (Exh..PC) and found that the entry wounds were on the one side i.e. on the left arm and chest of the deceased. There is sufficient doubt created about the involvement of the appellant in the present case as the role attributed to him, is not supported by the medical evidence. It is also found that according to the witnesses the deceased had been fired at by the accused from a distance of one to five feet but according to the doctor, there was no burning on any of the injury attributed to any of the accused and the doctor had given the opinion that the injury might be caused from a distance of 10 feet. According to the direction given by the doctor, the occurrence might have taken place at 2-00 p.m. when there was no possibility of the presence of the witnesses at the spot, who even otherwise had failed to establish their presence at the spot. According to the site-plan Exh.PD, which had been prepared by Masood Ahmad Bhatti Draftsman (P.W.5), the accused Muhammad Arif alias Bhutto was at point "E" and the other accused including the appellant were at a point "F". Point "F" was at a distance of two feet from the deceased. Point "F" was at a distance of five feet, which was also not in conformity with the medical evidence. In such circumstances, we find that the prosecution evidence is not worthy of reliance.

14. The motive set up by the prosecution for the present incident was that the appellant had been earlier injured through fire-arm by the deceased. It can be observed that the motive is a double edged weapon. If the appellant had a motive for assaulting upon the deceased. It can also be a reason for his false implication in the present case. It shows that the previous enmity existed between the parties and the ocular account being inimical could not be relied upon unless the same was corroborated by some independent piece of evidence, which is lacking in the present case. Even otherwise during the cross-examination, it was conceded by Mst. Hafeezan Bibi that her father and Mehmood Ahmad, one of his other brothers were murdered and they had number of enemies. The' witnesses were also involved in criminal cases by the other enemies. In such circumstances, the deceased could have been murdered by anybody else as well due to the longstanding enmity between the complainant party and other persons of the same locality about the murder of the close relatives of the complainant. The complainant Mst. Hafeezan Bibi had also admitted that no one had supported their version from the said village. Both the witnesses have already been disbelieved to the extent of involvement of Mst. Bilqees Bibi and Muhammad Shahbaz acquitted accused and the same evidence also cannot be relied upon to the extent of the appellant as well without story corroboration by some independent evidence, which is lacking in the present case. Merely because of motive, the appellant cannot be held liable for this occurrence, when we have already found the involvement of the appellant in the present occurrence doubtful.

15. A rifle was shown to have been recovered from the appellant on 27-10-1999 from his residential room in the presence of Sanaullah, Constable (P.W.1), who during the cross-examination admitted that he did not know the names of the neighbourer. However, the place of recovery was surrounded by the other houses, but no person from the locality was associated in the recovery proceedings by the I.O. except two police constables. P.W. also admitted that the door was opened and family members were present and the appellant's mother was also residing in the same house. It seems that the recovery of weapon from the appellant had not been effected from the place exclusively in the possession of the appellant. Even otherwise the report of the Forensic Science Laboratory was only that the rifle recovered from the appellant was in working condition. However, it does not disclose that the said rifle allegedly recovered from the appellant was used in the same incident and the recovery of weapon is inconsequential.

16. As a result of the above discussion, we find that the prosecution had not succeeded in proving the case against the appellant beyond any shadow of doubt. Hence, this appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge, who shall be set at liberty forthwith, if not required in any other criminal case. The Murder Reference No.671 of 2001 is replied in the negative and death sentence is not confirmed. H.B.T./M-550/L Appeal accepted.