2017 PLP 65 (YLRN)

SHAHID HAMEED DAR, J.

This appeal arises from the judgment, dated 8.6.2010, whereby learned Additional Sessions Judge, Chiniot convicted Rizwan Ali, Sajid Ali and Abdullah (appellants) under section 302(b)/34, P.P.C. and sentenced them to imprisonment for life each with direction to pay a sum of Rs.1,00,000/- each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to undergo imprisonment for six months each. Benefit of section 382-B, Cr.P.C. was, however extended to them. It all happened on conclusion of their trial in a private complaint-case, filed by Mehram Khan (complainant/P.W.l) for an offence under section 302/34, P.P.C., which was virtually an off-shoot of case-FIR No.120/08, dated 4.3.2008, registered for an offence under section 302 P.P.C., at Police Station Bhowana (Jhang).

2. Precisely, the prosecution story as narrated by the complainant (P.W. 1) in the private-complaint (Exh.PB) is that he and his son Imtiaz Hussain were present at their house at 5/6.00 pm. on 3.3.2008 along with other members of the family, when somebody knocked at the outer-door; his son went outside, then came back and left the house again by riding his motorcycle Honda CD-70 bearing registration No.1083-FDL; he saw three other persons and his son riding the said motorcycle, as they moved away; he (complainant) returned to his house; it was at about 9.00 p.m., when Sajid Ali (appellant) made him a telephone call that dead body of his son Imtiaz Hussain lay at a kacha passage, near Nehra-Morr, whereon he reached the spot in the company of Noor Muhammad (P. W.6) and Musa PW (not produced) and saw dead body of his son lying there; it bore multiple fire-marks; he stayed there for a while and felt highly upset as deceased was his only son; he was still there, when Ghazanfar Ali PW (not produced) and Mehmood (P.W.4) told him that they had seen his son Imtiaz Hussain and three respondent-accused (appellants) at about 6/7.00 p.m. moving towards Muhammadi Sharif on a Honda-70 motorcycle; in the meanwhile Allah Yar (P.W2) and Abdul Hafeez (P.W 3) also reached there and told that they saw Rizwan (appellant) make a fire-shot with his pistol into left side of chest of Imtiaz Hussain, followed by another fire-shot by Sajid Ali (appellant) again into the left side of his son's chest while their co-accused Abdullah kept firing in the air; they further told that they parked their motorcycle and saw the occurrence in the brightness of its headlight; they maintained that Rizwan (appellant) drove away motorcycle of Imtiaz Hussain with the co-accused at his back. The motive behind the occurrence was that respondent-accused were friends of complainant's son and in this backdrop Rizwan accused (appellant) had developed an illicit liaison with Mst.Farzana, real sister of Abdullah-accused (appellant), which became talk of the town; Rizwan and Abdullah accused suspected that Imtiaz Hussain (deceased) had publicized this story in the area and brought them a bad name, due to which they committed his murder. The complainant left witnesses at the spot and set off for police station to register a case; he met Amjad Hayat Thanedar, PW (not produced) and some constables, on the way, at Adda Pathankot, whom he told about the occurrence; the Thanedar asked him to present a written application for lodging a case, whereon he met Haq Nawaz advocate, who was previously known to him; he asked him to prepare an application, who accordingly wrote an application for him; since he was an illiterate person and written application had not been read over to him by the advocate and the police, so he learnt it later-on that Haq Nawaz advocate had not prepared the application in line with his contentions, as he was a friend of Rizwan accused (appellant) as well and he had conspired to save him. The police reached the spot, took the dead body into possession and despatched it to the mortuary for postmortem examination; the investigating officer recorded statements of the witnesses, who supported the complainant's assertion; a relative of Rizwan accused, namely Akram Naeem Bharoka was SP in the police department and posted in the office of the Inspector General Police Punjab in those days, who pressurized the local police to distort the occurrence and save the accused from the consequences of their brutal act; he showed no faith in the police investigation, hence, he filed the private-complaint. Prior to filing of the private-complaint, the complainant moved an application (Exh.PA) to the SHO, Police Station Bhowana (Jhang) for registration of a case against three unknown persons for the murder of his son Imtiaz Hussain, on the basis of which FIR No.120/2008, was recorded under section 302 P.P.C. at the said police station, at 12.30 a.m., on 4.3.2008.

3. After registration of the case, its investigation was entrusted to Muhammad Yar Rajoka SI (C.W.4) on 6.3.2008. According to him, the accused persons, Rizwan Ali, Sajid Ali and Abdullah had already been nominated by the witnesses in their statements under section 161, Cr.P.C.; he got prepared site plan in-scale (Exh.CW4/A) from the patwari-halqa on 19.3.2008; he arrested all three accused on 9.4.2008. He was transferred from the said police station on 17.4.2008, hence investigation of the case was handed over to Ghulam Murtaza SI (C.W.3) on 19.4.2008, who interrogated the accused; Rizwan Ali (appellant) and Sajid Ali (appellant) made disclosures and got recovered pistols .30 bore (P1 and P2), which he took into possession vide memos of recovery Exh.CW2/A and Exh.CW2/B, respectively. On completion of investigation, he concluded that Rizwan, Sajid, Abdullah and Imtiaz (deceased) designed to commit dacoity at Nehra Morr, when another gang of criminals, Umer Draz, Mazhar alias Karnal and Imran (POs) reached there and cross-firing took place between them, as a result of which Imtiaz was hit and killed at the spot; a separate case of robbery bearing FIR No.208/2008 was also registered on 17.4.2008, under sections 392/411, P.P.C. at Police Station Bhowana against Rizwan, Sajid and Abdullah, the appellants. The complainant (P.W.1) being dissatisfied with the investigation conducted by the investigators, filed the above-said private complaint (Exh.PB), to prosecute the accused.

4. Learned trial court after necessary proceedings under sections 200, 202, Cr.P.C. summoned the appellants (respondents therein) to face the trial. The FIR-case and the private complaint were taken up together by the learned trial court for trial of the accused.

5. On indictment, the appellants pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced six witnesses, namely Mehram Khan (complainant/P.W.1), Allah Yar (P.W.2), Abdul Hafeez (P.W.3), Mehmood (P.W.4), Dr. Muhammad Sharif (P.W.5) and Noor Muhammad (P.W.6), while rest, Noor Sultan 653/C, Zafar Iqbal 1396/C, Ghulam Murtaza SI and Muhammad Yar Rajoka SI were recorded as C.W.1 to C.W.4, respectively. Thereafter, the appellants were examined under section 342 Cr.P.C., whereby they proclaimed their absolute innocence in the matter. While answering the question, why this case was registered against them and why the PWs had deposed against them, they stated, one by one, as under:-- RIZWAN ALI: "I, along with Imtiaz (deceased), Sajid Ali and Abdullah were present at Nahra Mor, standing for the purpose of committing dacoity. Three unknown persons came there on motorcycle. We tried to stop them but they suddenly made firing on us. As a result of unknown person's firing Imtiaz (deceased) died at the spot. Sajid Ali (accused) facing the trial informed Mehram complainant on phone about the occurrence. The complainant involved me in this case with a view to blackmailing me for unjustified purposes. During the course of investigation the real culprits were traced out and identified but the complainant due to some hidden reasons was not willing to initiate criminal proceedings against identified persons/accused". SAJID ALI: "I, along with Imtiaz (deceased), Sajid Ali and Abdullah were present at Nahra Mor, standing for the purpose of committing dacoity. Three unknown persons came there on motorcycle. We tried to stop them but they suddenly made firing on us. As a result of unknown person's firing Imtiaz (deceased) died at the spot. Sajid Ali (accused) facing the trial informed Mehram Khan complainant on phone about the occurrence. The complainant involved me in this case with a view to blackmailing me for unjustified purposes. During the course of investigation the real culprits were traced out and identified but the complainant due to some hidden reasons was not willing to initiate criminal proceedings against identified persons/accused". ABDULLAH: "I, along with Imtiaz (deceased), Sajid Ali and Abdullah were present at Nahra Mor, standing for the purpose of committing dacoity. Three unknown persons came there on motorcycle. We tried to stop them but they suddenly made firing on us. As a result of unknown person's firing Imtiaz (deceased) died at the spot. Sajid Ali (accused) facing the trial informed Mehram Khan complainant on phone about the occurrence. The complainant involved me in this case with a view to blackmailing me for unjustified purposes. During the course of investigation the real culprits were traced out and identified but the complainant due to some hidden reasons was not willing to initiate criminal proceedings against identified persons/accused." They opted not to appear under section 340(2) Cr.P.C. nor they adduced any evidence in their defence.

5. Learned trial court concluded trial of the appellants through the impugned judgment by holding them guilty of the charge and awarding them the sentence, in mentioned terms.

6. Learned counsel for the appellants has submitted that the complainant, Mehram Khan (P.W.1) did not nominate the appellants in his written application (Exh.PA), which he presented before Amjad Hayat SI, PW (not produced) for registration of case against the murderers of his son, Imtiaz Hussain, rather he mentioned therein that Allah Yar (P.W.2) and Abdul Hafeez (P.W.3), who had seen the occurrence, informed him that they saw three unknown persons with muffled faces firing at his son, due to which he fell on the ground wounded, whereafter they drove away his motorcycle; the witnesses of ocular account made dishonest improvements in their testimonies and rendered unnatural depositions, which categorically established that Imtiaz Hussain had been done to death by some unknown persons in the darkness of the night and his dead body was found from the spot by some passersby on the following morning, who accordingly informed the police; the complaint-case was filed by the complainant more than three months after the alleged occurrence, with such contentions which had no relevance with his application (Exh.PA) that he presented before the police for lodgment of FIR; the impugned judgment has been passed merely on whimsical thoughts, hence, it is fallible by all means.

7. On the contrary, learned counsel for the complainant has contended that both the eye-witnesses (P.W.2 and P.W.3) rendered credible ocular account, which was directly corroborated by the medical evidence tendered by Dr. Muhammad Sharif (P.W.5); two of the appellants, Rizwan Ali and Sajid Ali got recovered pistols 30-bore (P1 and P2) on 21.4.2008; which made another strong corroboratory circumstance against them; the accused admitted their presence at the spot at relevant time of the occurrence in their statements under section 342, Cr.P.C., which sufficiently connected them with the murder of Imtiaz Hussain; the impugned judgment is based on sound reasoning and logical arguments, hence, it may be sustained and the appellants' appeal may be dismissed.

8. Learned Deputy Prosecutor General Punjab looked well aware of the weaknesses of prosecution case, hence, he did not show much enthusiasm in supporting contentions of the learned counsel for the complainant, nevertheless, he opposed this appeal by submitting that the appellants had murdered an innocent person, so they deserved no leniency.

9. After hearing the learned counsel for the parties and perusing the record with their able assistance, it is observed that the earliest stance, as taken by the complainant, Mehram Khan (P.W.1) in his written application (Exh.PA) that he produced before Amjad Hayat SI, PW (not produced) was altogether different from the one which he introduced at a later stage, through private-complaint (Exh.PB), filed more than three months after his first contact with the police. In his written application (Exh.PA), which he got written from Haq Nawaz advocate and admitted it to have been presented by him before the police for registration of case qua the murder of his son, entailed allegations that Sajid Ali (appellant) telephonically informed him at 9.00 p.m. on 3.3.2008 that dead body of his son Imtiaz Hussain lay at a kacha pathway near Nehra Morr whereon he along with Noor Muhammad (P.W.6) and Musa PW (not produced) reached the said place and found his son's dead body lying there, which bore firearm injuries on it; in the meanwhile, Allah Yar (P.W.2) and Abdul Hafeez (P.W.3) reached there and informed him that they were on way to Muhammadi Sharif); when they suddenly heard report of firing near Nehra Morr Thatha and saw three unknown persons wearing veils on their faces, firing at Imtiaz Hussain and one of their fire-shots hit him due to which he fell down in injured condition; the unknown shooters took away his motorcycle with them; they could not identify the accused as they had muffled their faces.

10. The police proceedings recorded on this application (Exh.PA) revealed that Amjad Hayat SI had received the said application from the complainant at 11.40 p.m. on 3.3.2008 at Adda Pathankot. Amjad Hayat SI mentioned in police karwai that he forwarded the complainant's application (Exh.PA) to the Police Station Bhowana (Jhang) through Muhammad Riaz 176/C PW, who too was withheld by the prosecution at trial. The aforesaid application of the complainant led to registration of case-FIR No.120/08 at 12.30 a.m. on 4.3.2008 for an offence under section 302 P.P.C. at Police Station Bhowana (Jhang) against the unknown accused, three in number. This FIR, was not tendered in evidence by the prosecution purposely, as complainant (P.W.1) had instituted private-complaint (Exh.PB) against the accused (appellants) by almost disowning the text thereof. The complainant's version in this regard is that Haq Nawaz advocate from whom he got application (Exh.PA) written had dishonestly changed the subject thereof so as to save the accused, as one of them, Rizwan Ali (appellant) was his fast friend. He also alleged that the said advocate had not read over contents of the written application to him, which he too, did not go through before he submitted it to the police for registration of the case. There cannot be a worse example of ridiculing oneself than what was said by the complainant in the said context, as only a foolhardy could press into service such an illogical argument or believe in such an absurd contention.

11. The complainant (P.W.1), in fact, well understood the ever weakening incriminating value of his story that he gave in application (Exh.PA), before he made up his mind to file a private-complaint against the accused with an altogether different allegation. He introduced two persons, Ansar Ali PW (not produced) and Mehmood (P.W.4) in the complaint as witnesses of last seen, who had allegedly witnessed Imtiaz Hussain (deceased) in the company of the accused/appellants, the same day at about 6/7.00 p.m. moving towards Muhammadi Sharif on the motorcycle of Imtiaz Hussain. He could not, however, understand as to what it really meant and how dangerous was it for his case, the contention that he adopted in his application (Exh.PA) that Allah Yar (P.W.2) and Abdul Hafeez (P.W.3) had arrived at the spot after he reached there, for he kept this contention unchanged in the complaint-case (Exh.PB), which conveyed no other meaning, that they had not witnessed the occurrence. Allah Yar (P.W.2) and Abdul Hafeez (P.W.3) being eye-witnesses, are the most crucial persons for the prosecution case, who failed to tender confidence inspiring or cogent evidence during trial. Allah Yar (P.W.2) was a resident of village Talib, which was at a distance of about fifty (50) kilometers from the place of occurrence and admitted himself to be a person from the same clan as that of the complainant. Abdul Hafeez (P.W.3) was a cousin of the complainant, hence, from the same brethren as Allah Yar (P.W.2) came from. Abdul Hafeez (P.W.3) was a resident of Jamia Abad (Chiniot), which was not too far from Nehra Morr and in between, interestingly, lay police post Jamia Abad, which fact was admitted by PW.3 when he submitted that police post fell on the way if he travelled from Nehra Morr i.e. the place of occurrence to Jamia Abad, where his house was situate. By their own contentions, they knew the complainant and his son Imtiaz Hussain (deceased) well. They had gone to village Thatha Qureshian from Jamia Abad by a motorcycle to purchase a tractor for Allah Yar PW and they reached there before sunset. They stayed there for a couple of hours and set-off for village Jamia Abad at 8.30 p.m., as admitted by Abdul Hafeez (P.W.3) in his testimony. He also deposed that the occurrence had taken place at 8.30 p.m. and they both witnessed the appellants firing at Imtiaz Hussain in the headlight of their motorcycle. They did not say at all, if complainant had reached the spot, after or before they reached there. Allah Yar (P.W.2) contended in his testimony that he along with his companion Abdul Hafeez (P.W.3) reached Jamia Abad at about 10.00 p.m. and spent night at his house and remained there till 7.15 a.m., obviously the following day. He reconsidered his stance and deposed in the same breath that he stayed at the place of murder for the whole night. Abdul Hafeez (P.W.3) categorically contended that they reached Jamia Abad at about 11.00 p.m. and it was at about 11.00 a.m., the next day when Allah Yar PW went back to his village Talib. If they had seen the occurrence and gone to the house of Abdul Hafeez PW, situated in village Jamia Abad, they must have passed in front of police post Jamia Abad, but they, despite their close association with the deceased and the complainant, did not inform the police.

12. The dead body of the deceased surprisingly remained at the spot, placed on the ground till the next morning, when it was shifted to the hospital for postmortem examination, as deposed about by Abdul Hafeez (P.W.3). He also stated that Rana Amjad, SI PW (not produced) came to the place of murder at about 9.00 p.m. stayed there for twenty (20) minutes and went back by leaving behind two police constables to stand guard against the dead body. Allah Yar (P.W.2) also made almost an identical deposition by saying that police came to venue of the crime at about 10.00 p.m., remained there for about 30 minutes and went back to return at 6/7.00 a.m., the next day. He did not refer to the fact of standing guard against the dead body by the police constables throughout the night. The testimonies of the eye-witnesses, when kept in juxtaposition with the statement of the complainant (P.W.1), lend a strong impression that whatever they had stated about having witnessed the occurrence was nothing but sheer exaggeration. It does not appeal to reason that they witnessed the occurrence and silently went to the house of one of them, Abdul Hafeez (P.W.3), where they had a peaceful overnight stay and they never thought of informing the police about the murder of their well-known crony's youthful son Imtiaz Hussain. As per their own contentions, they went straight to the house of Abdul Hafeez (P.W.3) and passed the night there, then how could it be believed that they had met the complainant at the spot and told him about having witnessed the occurrence of murder of his son, allegedly committed by the appellants. Their statements bring the complainant's evidence crashing down to the ground. The complainant (P.W.1) grossly improved upon his previous statement as contained in application (Exh.PA), wherefor he was duly cross-examined and confronted with, which overwhelmingly established that he had made dishonest improvements in his testimony to abridge the gaps in his case. They (P.W.1 to P.W.3) amongst themselves have wrecked the prosecution case in the worst terms. The claim of the eye-witnesses (P.W.2 and P.W.3) that they saw the occurrence, is a plain lie and a mere gossip. The ocular account being untrustworthy and being devoid of rationale is brushed aside.

13. The medical evidence as tendered by Dr. Muhammad Sherif (P.W.5) hardly lends any strength to the prosecution case. It only verified that the dead body of the deceased had posthumously been examined by him at 10.00 a.m. on 4.3.2008 about thirteen (13) hours after the alleged occurrence. The written application of the complainant (Exh.PA) was received by Amjad Hayat SI, PW (not produced) at 11.40 p.m. on 3.3.2008, within three hours after the alleged occurrence. If it was so, the dead body of the deceased must not have been abandoned by the police at the spot for the whole night. It was certainly picked up from the place of occurrence in the morning of 4.3.2008 and taken to the hospital thereafter, which only conveyed the sense that the complainant's son had been murdered by some unknown persons at some unknown time in the darkness of the night. The complainant also stated identically about the dead body of his son, that it remained at the spot till next morning and it was sent to the mortuary by the police at 7.00 a.m. A number of disjointed events have been stitched together to make a single case against the appellants, but it turned out to be a sheer inconclusive endeavour. No reply came from the prosecution as to why the dead body remained at the place of occurrence for the whole night and why was it taken to the hospital the following morning. This delay, in itself, is fatal for the prosecution case. The necropsy report (Exh.PD) of the deceased could only tell the number of injuries, the weapon used therefor, the cause of death, probable time of death and a few other ancillary informations, but it cannot identify the author of three firearm injuries on the dead body, one out of which, injury No.2 on the anterolateral side of upper part of right chest, was an exit wound. The ocular account having already been rejected in the preceding paragraph, leaves nothing behind for the medical evidence to offer corroboration to.

14. The recovery of pistols 30-bore (P1 and P2) at the instance of Rizwan Ali and Sajid Ali (appellants) vide memo of recovery Exh.CW2/A and Exh.CW2/B on 21.4.2008 hardly incriminate the accused as Amjad Hayat SI, PW (not produced) failed to collect any crime empty of the same caliber during spot inspection. The visual site plan, which he prepared on 4.3.2008 has also not been received in evidence though available in original on the record. It did not entail any distinctive mark as to recovery of a crime empty from the place of occurrence. The evidentiary value of the pistols allegedly recovered at the instance of the appellants, Rizwan Ali and Sajid Ali is too meagre to corroborate the prosecution case, thus it is virtually inconsequential and a worthless circumstance.

15. So far as admitting their presence at the spot at the crucial hour along with Imtiaz Hussain (deceased) by the appellants in their statements under section 342, Cr.P.C. is concerned, it cannot be considered an incriminating circumstance against them, unless they had rendered self-implicating depositions as to murder of the deceased, which they had attributed to a group of some other dacoits, which opened indiscriminate firing on them and murdered Imtiaz Hussain. Their statements under section 342, Cr.P.C. have to be believed in toto or rejected likewise. No portion of it can be segregated to lend corroboration to the prosecution case, which otherwise, had no legs to stand on. Reliance in this regard may be placed on Faiz and another v. The State (1983 SCMR 76) Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Shabbir Ahmad v. The State (PLD 1995 SC 343) and Shamoon alias Shamma v. State (1995 SCMR 1377).

16. For the discussion supra, it is concluded that the prosecution has badly failed in proving its case against. The appellants beyond any shadow of doubt. The impugned judgment appears to have been passed thoughtlessly, mechanically and without application of judicious mind. A wave of conjectural approach may be found creeping through the observations of guilt of the appellants, as recorded by the learned trial court in the impugned judgment. This appeal is, therefore, accepted at the cost of the impugned judgment.

17. Resultantly, the conviction/ sentence of the appellants is set aside and they are acquitted of the charge. Rizwan Ali and Sajid Ali (appellants) are in custody, so they are ordered to be released from the prison forthwith if not required to be detained in any other case. Abdullah (appellant) is present on bail, for, his sentence had been suspended by this court on 24.12.2010. His bail bonds are cancelled and surety discharged. HBT/R-3/L Appeal accepted.