2003 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.64 of 1998 filed by Mumtaz son of Muhammad Bukhsh, Mumtaz son of Manak and Muhammad Riaz son of Saleem Muhammad, appellants who were convicted and sentenced by learned Additional Sessions Judge, Jhang vide judgment, 22-1-1998 as under:-- Death with further direction to pay Rs.20,000 as required under section 544-A, Cr.P.C., in default six months' S.I. under section 302(b) read with section 34, P.P.C. Murder Reference No.7 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 sunset on 14-4-1996 at a distance of 3 miles from Police Station Sadar, District Jhang while the matter was reported to the police at 8-15 p.m. on the same night in the police station and formal F.I.R. Exh.P.J. was recorded by Liaqat Ali, Head Constable.

3. Briefly stated the facts of the case that on 15-4-1996 Haji Gul Muhammad brother of Muhammad Nawaz, the complainant, was going to be married with Mst. Shamim Akhtar daughter of Ahmad. Therefore, on 14-4-1996 the complainant alongwith Hafiz Khan Muhammad, Ghulam and Haji Gul Muhammad went to Jhang Sadar for purchasing some articles. At about sunset, they were proceeding back on two bicycles and when they reached near Primary School, Chah Komahranwala, Mumtaz son of Manak armed with hatchet, Mumtaz, son of Muhammad Bukhsh armed with Toka and Muhammad Riaz armed with hatchet emerged from the shelter of the Pully on a road and attacked on Haji Gul Muhammad. Mumtaz inflicted a Toka blow landing on the left side of head of Gul Muhammad where after Mumtaz son of Manak caused hatchet blow on the top of his head as a result whereof Haji Gul Muhammad collapsed. Then both Mumtaz and Riaz inflicted various hatchet and Toka blows on the head of Gul Muhammad and when the complainant and others tried to rescue Gul Muhammad, the accused threatened them. The accused made good their escape. Gul Muhammad succumbed to his injuries at the spot. The motive alleged in this' case was that Mumtaz son of Muhammad Bukhsh was son-in-law of Ahmad, father of Mst. Shamim Akhtar who wanted to marry Shamim with his co-accused Mumtaz son of Manak. It was further alleged that few days prior to the occurrence Allah Ditta son of Lal and Dilmir disclosed to the complainant that Muhammad Mumtaz son, of Manak, Muhammad Ramzan and Mumtaz son of Manak, Mumtaz son of, Muhammad Bukhsh and Riaz hatched a conspiracy at the Dera of Muhammad Ramzan to eliminate Haji Gul Muhammad as otherwise they would not be able to get the hand of Mst. Shamim. It was also alleged that Muhammad Nawaz and Muhammad Ramzan also said to their co-accused that they would incur all the expense and will provide them the arms, which offer was accepted by Mumtaz etc.

4. Investigation of the case was taken over by Asghar Ali, S.-I. (P.W.10). He went to the spot, inspected the dead body, prepared injury statement Exh.P.B., inquest report Exh.P.C. and took into possession the blood-stained earth vide memo. Exh.P.L. He also prepared the rough site plan Exh.P.M. and recorded statements of the witnesses. On 15-4-1996, Mumtaz son of Muhammad Bukhsh and Mumtaz son of Manak appeared before the Investigating Officer. Mumtaz son of Muhammad Bukhsh produced blood- stained Toka P.5 at the time of his appearance before the Investigating Officer which was taken into possession vide memo. Exh. P. F. The blood-stained clothes which both the accused were wearing were also taken into possession vide memo. Exh.P.G . and Exh. P. H. Mumtaz son of Muhammad Bukhsh accused was sent to judicial lock-up on 16-4-1996 while physical remand of Mumtaz son of Manak was obtained by the Investigating Officer. Site plans Exhs. P. D. and P. D./1 were got prepared from the Patwari. Riaz accused was arrested on 24-4-1996. The investigation was then taken over by Asghar Ali, S.-I. (P.W.11). On 30-4-1996, Mumtaz son of Manak got recovered hatchet P.11 which was secured vide memo. Exh.P.K. Riaz accused while in custody also got recovered hatchet P.10 which was taken into possession vide memo. Exh.P.I. After completion of the remaining formal investigation, all the five accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned D.D.A. tendered in evidence reports of the Chemical Examiner Exh.P.N. Exh.P.O., Exh.P.Q. reports of the Serologist Exh.P.R. Exh.P.S. and Exh.P.T. and closed the prosecution case. After that statements of the accused were recorded under section 342; Cr.P.C. in which they pleaded false implication. However, after conclusion of the trial, Muhammad Nawaz and Muhammad Ramzan were acquitted while the remaining three accused who are the present appellants were convicted and sentenced as stated above.

6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that the prosecution has failed to prove the motive alleged in the FIR Elaborating his argument, learned counsel submits that motive alleged in the F.I.R. was that Mumtaz son of Muhammad Bukhsh, convict who was son-in-law of Ahmad wanted to get the hand of Mst. Shamim Akhtar for his co-accused Mumtaz son of Manak but this motive is falsified from the fact that Mst. Shamim Akhtar. was already married to Haji Gul Sher on 8-7-1994, that is, one year and 7 months prior to the present occurrence and so there was no motive on the part of the appellants to commit the murder of the deceased; Learned counsel has also drawn our attention to Exh.D.F. which is the Nikah Nama in between Haji Gul Sher and Mst. Shamim Bibi. He has also invited our attention to the cross-examination of P.W.4 wherein he deposed that about one year prior to the occurrence Haji Gul Muhammad performed Nikah with Mst. Shamim in Watta marriage. This witness also deposed that the accused participated in the ceremony of Nikah f It is argued that Mumtaz son of Muhammad Bukhsh is brother-in-law (ﺉﻮﻧﻬﺒ) of Mst. Shamim and he could have intervened and created hurdles at the time of performance of Nikah and not after marriage and that neither Mst. Shamim nor her father .was either cited or produced by the prosecution before the trial Court. Learned counsel further submits that the occurrence having taken place in dark hours of the night, it was an un-witnessed occurrence. Adds that the conduct of eye-witnesses was unnatural because they did not intervene at the time of occurrence to save the life of the deceased when none of the assailants was equipped with any fire-arm. Further adds that both the eye-witnesses namely P. Ws.8 and 9 being not the residents of the place of occurrence were chance witnesses inasmuch as Muhammad Nawaz P. W.8 was resident of the place at a distance of one kilometre from the place of occurrence while Hafiz Khan. P. W.9 was the resident of the place which was at a distance of 30 miles from the venue of occurrence. According to the learned counsel, there was no reason on the part of the P. Ws. to accompany the deceased after the purchase of articles. Learned counsel adds that the deceased himself was running a grocery shop and there was no fun of their going to Bazar to purchase the articles. Further adds that according to story of the prosecution, the deceased and the P.Ws. were coming on cycles but the said cycle were possession nor were mentioned in Column Nos.22 and 23 of the inquest report. Also adds that even in the site plan, the cycles were not shown. Learned counsel submits that there is conflict between the ocular account and medical evidence. According to learned counsel for the appellants as per contents of the F.I.R., both accused named Mumtaz gave one injury each on the head of the deceased and thereafter all the three accused two of whom are named Mumtaz and tile third Riaz, gave injuries with hatchets and Toka which landed on the head of the deceased apart from other parts of the body while according to post-mortem report there were only two injuries on the head of the deceased and had the eye witnesses been present at the spot they must have mentioned the correct seats of injuries on the person of the deceased when according to the prosecution it was not dark by then. It is argued that the dimensions of the injuries suggest that those could not have been caused by hatchet but could be with Toka. Learned counsel has also drawn our attention to the cross-examination of the doctor P.W.1 wherein he deposed that there was possibility of single kind of weapon used for causing injuries, except injury No.5. It is submitted that Ghulam Shabbir F.C. (P.W.6) stated that dead body of the deceased was entrusted to him on 14-4-1996 at about 9-00/9-15 p.m. but the post-mortem was conducted at 2-40 p.m. on 15-4-1996. According to cross-examination of Dr. Zafar Iqbal (P.W.1) on the relevant day he was on duty from 2 p.m. to 9 p.m. and that if the dead body would have reached in the hospital before 2 p.m. alongwith police papers other Medical Officer had to perform post-mortem examination who was on duty from 8 a.m. to 2 p.m. As far as recoveries are concerned, learned counsel submits that those were planted upon the appellants, the witnesses of recovery were not the residents of the place of recovery; nobody from the vicinity was joined as recovery witness; there was violation of section 103, Cr.P.C.; the weapons of offence were not in exclusive possession of the appellants and that in fact the prosecution has failed to connect the recoveries with the occurrence. Concluding his submissions, learned counsel submits that it has come on record through the statement of P. W.8 Muhammad Nawaz that the deceased had married with a girl from Baluch Tribe and later on had divorced her and so the present occurrence might have been committed by the aforesaid Baluch Tribe. In support of his submissions, learned counsel for the appellants has relied upon 1980 SCMR 899 and 1999 SCMR 1220. Conversely, learned counsel for the State submits that the occurrence having taken place at sunset, it was not dark as alleged by the defence, it was a case of promptly lodged F.I.R.; the eye-witnesses are natural as they were coming back after making purchases as on the next day the marriage of the deceased was to take place and they had to participate in that marriage; there was no background of previous enmity between the parties, so there was no question of false implication; two accused namely Mumtaz son of Manak and Mumtaz son of Muhammad Bukhsh surrendered themselves before the police the blood-stained clothes of above-said two accused who surrendered before the police were also taken into possession by the Investigating Officer, the witness of conspiracy P.W.4 is related to the appellants; Nikah in between deceased and Shamim Akhtar had been performed but the Rukhsati had not taken place; Riaz appellant was adult at the time of occurrence though he gave his age when his statement was recorded under section 342, Cr.P.C. on 19-1-1998 as 18 years; Hafiz Muhammad Aslam examined as C.W.1. supported the certificate C.W.1/A according to which the date of birth of the accused Riaz was 8-6-1976; the reasons for delay in conducting post-mortem examination on the dead body of the deceased have been explained by the trial Court at page 102 of the paper book; the opinion of the doctor .cannot be given preference over the eye-witness account; only probability of one weapon having been mentioned by the doctor rather the doctor himself was not sure as to which weapon was used a layman includes face in the expression "head" and considers both as one and the same thing; any lapse on the part of the Investigating Agency cannot destroy the prosecution case and that in nutshell the prosecution has been successful in proving its case. She supports the judgment of the trial Court in toto. Learned counsel for the State has relied upon 1998 PCr.LJ 114, 2001 PCr.LJ 1932, PLD 2002 SC 52 and 62 and 2002 SCMR 1155. Learned counsel for the complainant submits that the eye witnesses are natural witnesses; they were accompanying the deceased after making purchases from the Bazar as on the next day the marriage of the deceased was to take place and the P.Ws. had to participate in the same; the doctor has given no reasons for stating that weapon used could be of one kind; the doctor did not state as to whether the injuries were caused with hatchet or Toka; the dimensions of the injuries suggest that those were caused with two different weapons; the motive in a way has been admitted by the appellants; Mumtaz son of Manak was related to. Mumtaz son of Muhammad Bukhsh and was interested to have the hand' of Shamim Akhtar for Mumtaz; though the witnesses are related inter se but had no enmity with the appellants to falsely implicate them; mere relationship per se is no ground to discard the testimony of the witnesses who are otherwise not inimical or interested; no unwarranted delay occurred in performing post-mortem examination on the dead body of the deceased; the delay if any, in that respect, cannot negate the prosecution story when the F.I.R. was lodged with promptitude; the parties being known to each other, it was not a case of mistaken identity; the number of injuries on the person of the deceased coincides with the number of accused; the injuries on the person of the deceased suggest that the murder was committed with vengeance and also with premeditation; there are no mitigating circumstances in favour of the appellants to reduce the quantum of sentence and that the prosecution has been successful in proving its case to the hilt against the appellants. In support of his submissions, learned counsel has relied upon 1998 SCMR 1778. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. First of all, we would take up the motive. The motive alleged in the F.I.R. was as under:-- The appellants placed on record Nikahnama Exh.D.F. between the deceased and Mst. Shamim. The Nikah was performed on 8-7-1994 while the occurrence had taken place on 14-4-1996. It has come on record that Mumtaz son of Manak was married to the sister of Mst. Shamim and he wanted the hand of Mst. Shamim for Mumtaz son of Muhammad Bukhsh. It is not understandable why efforts were not made by the appellants at the time of Nikah of deceased with Mst. Shamim or why they did not intervene at the time of Nikah. Mumtaz son of Manak was very closely related to Mst. Shamim. He was the best person to create hindrances at the time of Nikah being brother-in-law of Mst. Shamim. Neither Mst. Shamim nor her father were cited as P. Ws. nor produced by the prosecution. We are thus of the considered view that the prosecution has failed to prove the motive as alleged in the F.I.R. Two eye-witnesses namely Muhammad Nawaz and Hafiz Khan were examined by the prosecution. Muhammad Nawaz P.W.8 is real brother of the deceased while Hafiz Khan P.W.9 is son-in-law of Ghulam Muhammad who was given up by the prosecution. The said Ghulam Muhammad is maternal-uncle of Nawaz and the deceased. One witness namely Hafiz Khan was the resident of place which was at a distance of 30 miles from the place of occurrence while Muhammad Nawaz P. W. was residing at a place at a distance of one kilometre. There is no denying the fact that mere relationship of the witnesses with the deceased is no criteria to discard their testimony but the Court has to see whether the eye-witnesses were present at the spot or not. To our mind, both the eye-witnesses are chance witnesses. Their presence at the spot is doubtful. None of the appellants was equipped with fire-arm but not a single P.W. stepped forward to save the deceased. All the witnesses produced by the prosecution are related to the deceased. It was the case of the prosecution itself that when the occurrence had taken pace, there was light. If it is presumed to be correct then all the more the eye witnesses should have given the correct seats of injuries on the person of the deceased. It was alleged in the F.I.R. that Mumtaz son of Muhammad Bukhsh gave Toka blow which landed on the left side of head of Haji Gul Muhammad while the second hatchet blow was given by Mumtaz son of Manak which also hit on the head of the deceased. Then both Mumtaz and Riaz gave many blows on the left side of head of the deceased with hatchets and Toka. Dr. Zafar Iqbal (P.W.1) who conducted post-mortem examination on the dead body of the deceased found only two injuries on the head of the deceased. According to the diagram attached with the post-mortem report, rest of the injuries are on the neck, face and near the neck of the deceased. There is no force in the argument of learned counsel for the State as well as counsel for the complainant that for a lay man there is no difference between the head and the neck. Every one understands the difference between the head and the neck. There is a clear distinction between every part of human body. Ghulam Shabbir, F.C. (PW.6) had taken the dead body to hospital at 9/9-15 p.m. on 14-4-1996 but the post-mortem was conducted at 2-40 a.m. on 15-4-1996. In cross-examination, the doctor admitted that on the relevant day he was on duty from 2 p.m. to 9 p.m. and had the dead body reached the hospital before 2 p.m. alongwith police papers some other Medical Officer had performed the post-mortem examination who was on duty from 8 a.m. to 2 p.m. This inordinate delay in the conduct of post mortem examination also casts doubts about the veracity of prosecution story. The duration given by the doctor between the death and post mortem examination was 16 to 20 hours. So keeping in mind the time of occurrence as alleged by the prosecution and the time when the post-mortem examination was conducted, there is immense possibility that the occurrence, had taken place in dark hours of the night and so it was an un-witnessed occurrence. Even the inquest report prepared by the Investigating Officer has not been signed by any of the eye-witnesses. It was the story of prosecution that the P.Ws. and the deceased were coming on two cycles but no cycle was taken into possession by the police. There is no mention of any cycle in Columns Nos.22 and 23 of the inquest report. There is also no mention of the cycles in the site plans, one prepared by the Investigating Officer on his first visit to the place of occurrence and the other prepared by the Patwari. We fail to understand why Mumtaz son of Muhammad Bukhsh and Mumtaz son of Manak would appear before the police with blood stained clothes on their bodies. It is against the natural conduct of a human being. The natural conduct is that the culprits after commission of an offence would run away and will not produce the weapons of offence on their own, so to avoid being sent to gallows. The blood-stained clothes which the accused were wearing at the time of occurrence and were taken into possession by the Investigating Officer were never sent to the Chemical Examiner for determination of origin of blood. So far as recovery of weapon of offence from Riaz convict is concerned, the two recovery witnesses are residents of places 15 miles away from the place of occurrence. No person from the vicinity was joined to witness the recovery proceedings. After having gone through the entire record and attending to the submissions made by learned counsel for the parties we are of the considered view that prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt, rather the defence has been able to create dents in the prosecution story, resulting into doubts. When doubts arise, the benefit of the same has to be given to the accused not as grace but as a matter of right. While extending the benefit of doubt to the accused, we, accept, the appeal filed by the convicts-appellants and set aside the conviction and sentence recorded against them by the trial Court. All the three appellants are acquitted of the charge and they shall be released forthwith, if not required to be detained in any other case. Their death sentence is not confirmed. Murder reference is replied in the negative. N.H.Q./M-1618/L Appeal accepted.