2007 PLP 478 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Bashir Ahmad, appellant, along with Muhammad Anwar and Parveen was tried by the learned Additional Sessions Judge, Gujranwala, in lieu of case F.I.R. No.78 registered at Police Station Hujra Shah Muqeem on 11-2-1998 for offences under section 302/34, P.P.C. Vide judgment dated 2-11-2000, the learned trial Judge, while acquitting the aforesaid co-accused of the appellant, convicted the appellant for offence under section 302, P.P.C. to death plus payment of Rs.50,000 as fine, which, in the event of realization was to be paid to the legal heirs of the deceased.

2. Bashir Ahmad, convict-appellant, has challenged his abovenoted conviction and sentence through the instant appeal. Murder Reference No.403 of 2000 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.

3. Briefly, the facts of the case per complaint Exh.PA of Muhammad Ali, complainant/P.W.2, which based the registration of formal F.I.R. Exh.PA/1, are that the complainant's son Amanat Ali and Bashir Ahmad had friendship with each other. About six months prior to the occurrence Amanat Ali gave Rs.10,000 as loan to Bashir Ahmad Changar for business purposes. Amanat Ali repeatedly demanded back his money but instead of paying the same, Bashir Ahmad used to come out with lame excuses. On 8-1-1998 at Iftari time, Parveen wife of Bashir Changar came to the complainant's house and informed Amanat Ali that Bashir wanted to see him. The deceased accompanied Parveen. At that time, Mst. Fayyaz Bibi, Fariyad and the daughters of the complainant were present in the house. Amanat Ali did not return to the house even after Taraweeh time, whereupon the wife of the complainant and Fariyad went to Anwar Lahoriya and inquired about Amanat. All the three went to Bashir Ahmad. Amanat was present there and told that he would return in the morning. Feeling satisfied, Fayyaz Bibi and Fariyad came back to the house. On the next morning it was known to the P.Ws. that Bashir Ahmad/appellant and Anwar Lahoriya (acquitted accused) with common intention had murdered Amanat Ali. It was added that when Amanat Ali left the house, he was having a lot of money with him.The complainant was not present at home at that time. On his return to his house, he approached the authorities but no case was registered. However, under the orders of the High Court, the instant case was registered by Asmat Ullah, S.-I./CW-1.

4. On 30-6-1998, Iftikhar Ahmad, HC/P.W.10, arrested Bashir Ahmad/appellant. On 3-7-1998, the appellant, while in custody led to recovery of .12 bore double barrel gun P.11 along with two live cartridges P.12/1-2, which were taken into possession vide memo. Exh.PG. He got prepared the scaled site-plan of the place of occurrence (Exh.PE and PE/l) from Arif Hussain Ayyas, Draftsman/P.W.6. After completion of investigation, he sent up the accused to face the trial.

5. During trial the prosecution produced eleven witnesses in support of its case. Muhammad Ali/P.W.2, Mst. Fayyaz Bibi/P.W.3 and Fariyad Hussain/P.W.7 furnished the evidence of the deceased having been seen lastly in the company of the appellant. In addition to that, P.Ws.2 and 3 also stated about the motive. Iftikhar Ahmad, HC/P.W.10, stated about the investigation of the case. Dr. Mansoor Abbas/P. W.9 conducted post-mortem examination on the dead body of Amanat Ali on 9-1-1998. He, while observing the following injuries on the person of the deceased:- "(1) A fire-arm lacerated wound of entry 5 c.m. x 4 c.m. x going deep with abarent collar on the back of left side of loin at the lumber area 8 c.m. from posterior mid-line upper part. (2) A fire-arm lacerated wound of entry 4 c.m: x 5 c.m. x going deep on back and left side of lumbo sacral area and inner and upper quadrant of left buttock 3 c.m. from posterior mid-line and metal cleft margins were ragged and abarent collar was present." opined that the death occurred due to haemorrhage shock resulted from severe loss of blood consequent upon Injuries Nos.1 and 2, which were, individually as well as collectively, sufficient to cause death in ordinary course of nature. Both were caused by fire-arm. The duration between the injuries and death was within half an hour, while the time which elapsed between the death and post mortem examination was 12 to 16 hours. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., he stated that he was employee of Saroya Mill where the deceased came at the mid-night for the theft of paddy lying in the fields whereupon case bearing F.I.R. No.13/98 dated 9-1-1998 was registered at his instance which offence was aggravated subsequently and he had been falsely implicated in this case against the actual facts. The appellant did not produce any defence witness. However, he himself appeared in his own defence as D. W.1 and placed on record copy of the aforesaid F.I.R. as Exh.DA.

7. Learned counsel for the appellant contends that the prosecution has miserably failed to prove its case, as except for evidence of having last seen, no other evidence is available against the appellant; that the prosecution case is replete with doubts; that statements of Muhammad Ali, Fayyaz Bibi and Fariyad, P.Ws., are mutually discrepant, as they contradicted each other on almost all material points.

8. Conversely, Mr. M. Ijaz Bajwa,, the learned counsel appearing for the State in the murder reference, has submitted that the prosecution has come out with very convincing evidence of the deceased having been seen lastly in the company of the appellant; that the evidence of last seen is supported by the circumstance of the murder of Amanat Ali deceased; that the weapon used during the occurrence was recovered from the appellant and he admitted that he had used that weapon; that the minor discrepancies in the statements of the P.Ws. were of no consequence; that the motive has been proved through the witnesses; that the appellant has taken the life of an innocent person in averse; and that the defence plea is highly unbelievable and has rightly been rejected by the learned trial Court.

9. Miss Sarwat Nawaz, the learned counsel for the State in the appeal, states that the initial F.I.R. in this case should have been lodged by the owner of the rice mills; that the discrepancies would crop up naturally when the evidence is recorded after considerable delay; that substitution was a rare phenomenon and in this case the parents would not substitute the real killer by an innocent person; that it is in F.I.R. that one person who hit Amanat Ali but on the contrary there are contradictions in the defence statement of the appellant and the version given in F.I.R. Exh.DA which was registered at his instance.

10. We have heard the learned counsel for the parties and have also gone through the record of the case.

11. The occurrence took place during night on 8-1-1998. Initially F.I.R. No.13 was registered at Police Station Sadar, Kamoki on the statement of Bashir Ahmad appellant at 12-55 a.m. on 8-1-1998 against Amanat Ali deceased and others for offences under sections 324/379/411, P.P.C. The F.I.R. is available on record as Exh.DA at page 85 of the paper book. Subsequently, F.I.R. No.78 was registered at the same police station on 11-2-1998 for offence under section 302, P.P.C. against the appellant, his wife Parveen and one Muhammad Anwar (both acquitted accused) at the instance of Muhammad Ali father of the deceased. It is a case of two versions; hence, both are to be put in juxtaposition to evaluate which of the two is true or' nearer to the truth.

12. According to prosecution case, Muhammad Ali lived in Habibpura, Kamoki along with his family. His son Amanat Ali had friendly relationship with Bashir Ahmad appellant. Amanat Ali gave a loan of Rs.10,000 to Bashir Ahmad for business six months prior to the occurrence. Amanat Ali repeatedly demanded back his money. but instead of paying the debt Bashir Ahmad used to come out with lame excuses. On 8-1-1998 at Iftar time, Parveen wife of the appellant went to the house of complainant and informed Amanat Ali that Bashir wanted to see him. The deceased accompanied Parveen. Amanat Ali did not return to the house even after the Taraweeh time, therefore, Fayyaz Bibi mother of the deceased and Fariyad son-in-law of the complainant went to Anwar (acquitted accused) and inquired about Amanat. Ali the three went to Bashir Ahmad. Amanat was present there and he stated that he would return in the morning. Feeling satisfied, Fayyaz Bibi and Fariyad Hussain went back to the house. Next morning it was knows to the P.Ws. that Bashir Ahmad appellant and Anwar Lahoriya (acquitted accused) with common intention murdered Amanat Ali. It was added that when Amanat Ali left the house, he had a lot of money with him. It was un-witnessed occurrence and the prosecution case rests on the statements of Muhammad Ali, Fayyaz Bibi, parents of the deceased, and Fariyad Hussain, son-in-law of the complainant. They have furnished the evidence of the deceased having been last seen in the company of the appellant as well as motive. It is settled law that in offences of capital punishment, the evidence should-come from an unimpeachable source. On the contrary, in the instant case, the above noted P.Ws. are not shy of telling lies. They also tried to implicate the wife of the appellant and Anwar. Their statements suffer from inherent defects. It was stated in the F.I.R. that in the presence of complainant, Fayyaz Bibi and Fariyad, the deceased, in the company of Parveen Bibi, went to the house of the appellant. In that case, Fayyaz Bibi and Fariyad should have gone straight to the house of Bashir Ahmad and there was no reason to go to Muhammad Anwar and inquire from him about the whereabouts of Amanat Ali. The name of Muhammad Anwar was added only to implicate him in this case. The prosecution case is knocked out by the fact that as against F.I.R. and statements of the P.Ws., Muhammad Ali admitted during cross examination that he was informed about the occurrence, while he was in Azad Kashmir. He further admitted that he lived in Kotli City in Azad Kashmir and it took eight hours to reach Kamoki from Kotli. He further explained that Allah Rakha Thekedar had received telephonic message about the occurrence and he had informed him. Fayyaz Bibi and Fariyad Hussain, P.Ws. insisted that Muhammad Ali was present in the house when the deceased accompanied Mst. Parveen Bibi. Not only this, P.W.7 Fariyad Hussain stated in examination-in-chief that he along with Muhammad Ali/P.W.2 and Fayyaz Bibi went to the house of Anwar Lahoriya and inquired about Amanat. But not only that, Muhammad Ali could not be with him, as he was in Kotli, but this fact is also against the narration of the F.I.R., wherein it was stated that it was Fariyad and Fayyaz Bibi who had gone after Amanat. In F.I.R. it was stated that loan of Rs.10,000 was given to Bashir Changar for the purpose of business six months prior to the occurrence while during trial Muhammad Ali in his cross-examination stated that when Bashir sustained fire-arm injury by one Rafiq alias Fiqa, his deceased son spent Rs.10,000 on the treatment of Bashir accused. P.W.3 stated that the loan was paid to Bashir Ahmad in her presence 4/5 months prior to the occurrence. P.W.7 Fariyad Hussain stated that Rs.10,000 were handed over to Bashir Ahmad in the presence of his mother-in-law, while his father-in-law and he were present in the house. On the contrary, Muhammad Ali stated during cross-examination that Amanat Ali had not given Rs.10,000 in his presence and rather the amount was given secretly to Bashir Ahmad. P.Ws.2 and 3 have also wrongly stated that their statements were recorded by the police on the next day. Their statements could not be recorded on the second day of the occurrence, as the instant case was registered on 11-2-1998 (after more than a month of the occurrence). Muhammad Zulfiqar, retired Inspector/P. W.11, who had initially investigated the case registered about the same occurrence vide F.I.R. No.13 of 1998 at the instance of Bashir Ahmad appellant, stated on oath that it was correct that during his investigation, it was found that the occurrence took place in the rice husking field and the facts of F.I.R. No.13/98 were found to be correct. He further admitted that Sultan Azam Taimuri, who was then S.P. Headquarters, Gujranwala, verified the investigation conducted by him. Even the complainant admitted that Sultan Azam Taimuri verified the investigation carried out by Muhammad Zulfiqar/P.W.11. He further stated that he was satisfied with the investigation conducted by S.P. Headquarters. According to the prosecution the deceased was last seen in the house of Bashir appellant, while the witnesses admitted that the dead body was lying in the field used for rice husking and not in the house of Bashir Ahmad. The statements of Muhammad Ali, Fayyaz Bibi and Fariyad Hussain, which are not worthy of any c credence, relate only to the evidence of last seen and motive, and are not corroborated by any other piece of independent evidence.

13. Bashir Ahmad appeared as witness in support of his defence plea and his statement was recorded by the learned trial Court under section 340(2), Cr.P.C. His version was that he was working as Chowkidar at the sheller of Habib Patwari and while he was performing his duties at about 12-30/1240 during night in foggy weather, three persons entered into the fields of sheller. They lifted one bag each of paddy and ran towards the house of sister of the deceased. He opened the fire. The said persons also fired at him and he did not know which fire hit the deceased. He informed the owners of the sheller. The owners came in the company of police. They took him to the police station and also took the dead body to the hospital. At the police station his statement was recorded and case F.I.R. No.13/98 (Exh.DA) was registered at Police Station Sadar, Kamoki on 9-1-1998 for offences under sections 324/379/411, P.P.C. His statement is supported by F.I.R. Exh.DA and statement of P.W.11 Muhammad Zulfiqar who had investigated the case and was produced by the prosecution itself. As already noted above, he stated that the occurrence took place in the rice husking field and the facts narrated in Exh.DA were found to be correct by him and his superiors. The defence plea finds further support from the site plan Exh.PF, wherein it has been mentioned that blood-stained earth and one bag containing Moonji were taken into possession. In the abovenoted circumstance, we are of the view that the defence plea is more plausible and is borne out from the circumstances of the case. The learned counsel appearing on behalf of the State pointed out certain minor contradictions in the statement of the appellant and the F.I.R. Exh.PA. However, the contradictions are of no consequence, as we cannot pick and choose from the statement of the appellant and cannot convict the appellant on the basis of certain portions of his evidence, especially when we are of the considered opinion that the prosecution has miserably failed to prove its case against the accused.

14. Resultantly, this appeal is allowed. The judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case. The death sentence is NOT confirmed. The Murder reference is answered in the negative. H.B.T./B-30/L Appeal allowed.