2009 PLP 2139 (YLR)

TARIQ SHAMIM, J.

This judgment shall dispose. of Criminal Appeal No. 287-J of 2003 filed by Muhammad Hayat, appellant and Murder Reference No.902 of 2002 submitted by the learned trial Court for confirmation or otherwise of sentence of death awarded to the appellant by the learned trial Court, as both the matters arise out of the same judgment dated 3-12-2002.

2. Muhammad Hayat son of Murad Ali, appellant, has challenged the judgment passed by the learned Additional Sessions Judge, Okara, in case bearing F.I.R. No.347/2000, dated 27-8-2000m registered with Police Station Chuchak, Tehsil and District Okara, for offence under sec tions 324, 148 and 149, P.P.C. (section 302 P.P.C. was added later on), whereby he convicted the appellant under section 302(b) P.P.C. and sentenced to death with a direction to pay Rs.1,00,000 as compensation to the legal heirs of Ahmad Nawaz, deceased, under sec tion 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months.

3. The prosecution story as narrated by Nazir Ahmad, complainant (P.W.4) in the F.I.R. (Exh.PC/1), in brief, is that on 26-8-2000 Nazir Ahmad complainant (P.W.4) and his son Ahmad Nawaz (deceased) went to village Peer Ali at about 5/6 p.m. at the Dera of Mazhar for personal work. Arif and Salabat were present at the Dera. Abbas came there and asked Ahmad Nawaz to accompany him. When they reached near sugar cane field of Mazhar and Fazal, Abbas said in a loud voice that he had brought Ahmad Nawaz. Ahmad Nawaz raised alarm and on his noise Nazir Ahmad complainant rushed towards that direction. From sugar cane field Muhammad Hayat (appellant), Mustafa and three unknown persons armed with fire-arm weapons came out. They stopped Ahmad Nawaz. Mustafa raised a lalkara that he should not be spared. Hayat (appellant) fired a shot with his rifle at Ahmad Nawaz which landed on his back. On hearing the report of fire, Muhammad Aslam (P.W.5) and Liaqat, who were coming there, witnessed the occurrence. They identified Muhammad Hayat (appellant) and Mustafa accused in the light of electric bulb. Ahmad Nawaz fell oh the ground and was taken to D.H.Q., Hospital, Okara in an injured condition. On 30-8-2000, the injured succumbed to the injuries. The occurrence was the result of long standing enmity of murders of Chara family.

4. After investigation, report under section 173, Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellant and others who denied the same, pleaded not guilty and claimed trial. The prosecution produced as many as 13 witnesses including Nazir Ahmad (P.W.4) and Muhammad Aslam (P.W.5) as eye-witnesses of the occurrence. At the conclusion of the prosecution evidence the appellant was examined under section 342, Cr.P.C. in response to the question as to why the case against him and why the witnesses had deposed against him, Muhammad Hayat, appellant, replied as under: -- "I have been involved in this case due to enmity falsely. The P.Ws. are made up witnesses. They are under the influence of Mazhar P.W. Mazhar is related to Nazir complainant. Aslam P.W. is also under the influence of Mazhar P.W. and he is his thief. In fact, Ahmad Nawaz deceased was a thief and an addict. He came to Okara district from Sheikhupura District, with an intention of theft. He had stolen a goat from the area of Okara District in the dark night and he was chased by some people who fired at him and the thief died due to injury of that firing. The police came at the spot and had arrested the deceased, when he was alive. The police also contracted the assailants Father of Ahmad Nawaz was summoned from his village Pindi Chari. At that time, Ahmad Nawaz was alive. The police threatened him that as Ahmad Nawaz had committed a theft, they are going to register a case against them. On the other hand, the police contacted the actual assailants and threatened them that the police is going to register a case as they have injured the deceased Ahmad Nawaz but later on, through bargaining with both the parties, the police with ulterior motive and mala fide intention involved me in this case at the instance of Nazir Ahmad complainant. Nazir complainant might have some revengeful and vindictive mind against me as he had doubt in his mind that we support his opponent at Pindi Chari. I am a poor fellow. Nazir complainant intentionally involved me in this case with the impression that I will not be able to defend the charge against me effectively."

5. The appellant neither opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. nor did he adduce any defence evidence. The learned trial Court after hearing the learned counsel for the parties, convicted the appellant and sentenced him as stated earlier which has been assailed through this criminal appeal.

6. The learned counsel for the appellant contended that the occurrence was un-witnessed one; that the complainant was not present at the place of occurrence at the relevant time as was evident from the statement of the, deceased recorded by the police at the hospital; that the other witness Muhammad Aslam (P.W.5) was a chance witness and had no occasion to be present at the place of occurrence; that blood-stained earth was not taken into possession by the police, thus, the place where the deceased had died could not be ascertained; that no empty was recovered and the weapon of offence was taken by the police from an open field which, therefore, was of no consequence; that the eye-witnesses had, made dishonest improvements in their statements made before the learned trial Court; that the best evidence was withheld by the prosecution inasmuch as the statement of the deceased recorded at the hospital by the police was not produced in evidence; that the motive as urged by the prosecution was farfetched and remained unsubstantiated and that inordinate delay of 9 hours in lodging of the F..I.R. had cast serious doubt on the veracity of the prosecution case, therefore, the appellant deserved to be acquitted.

7. On the other hand, the learned Deputy Prosecutor-General while appearing on behalf of the State argued that the eye-witnesses had furnished a credible account of the occurrence and no material improvement was made by them at the trial; that motive behind the occurrence was proved by the witnesses; that the medical evidence supported the ocular account, thus, leading necessary corroboration thereto; that the delay in lodging of the F.I.R. was natural in the given circumstances and that the learned trial Court had passed the judgment on proper appreciation of evidence, therefore, no interference was called for by this Court.

8. We have heard the learned counsel and have gone through the record.

9. The prosecution case mainly rests on motive, ocular account, medical evidence and recovery of weapon. According to Nazir Ahmad (P.W.4) the complainant and father of the deceased the motive behind the occurrence, was that his cousin Fazal Khan was murdered in which Shahadat, Muhammad Hussain, Khuda Yar and Sardara were nominated as accused. The appellant being nephew of the said Sardara committed the murder on account of the said enmity. From the statement made by this witness it has become apparent that direct motive has not been attributed to the appellant and in fact it was the complainant side which had the motive. The F.I.R. of the said case was also not produced by the prosecution at the trial which also raises serious questions about the veracity of the motive. The other witness who had deposed about the motive before the learned trial Court was Muhammad Aslam (P.W.5) who had made an ambiguous statement viz. that there was enmity between Chara family and the deceased family and that the accused of the F.I.R. including the appellant were gunmen of the Chara family. This witness had also failed to attribute direct motive to the appellant for the murder of the deceased. From the foregoing it has become apparent that the prosecution has failed to establish motive behind the occurrence through any cogent or convincing evidence.

10. Nazir Hussain, Sub-Inspector (P.W.11) who partly investigated the case arrested the appellant on 16-11-2001 and while he was on physical remand, on 24-1.1-2000 he led to the recovery of rifle, the weapon of offence and seven live cartridges from the bushes underneath a tree. This piece of evidence is of no avail to the prosecution on account of the fact that the recovery was effected from an open and an uninhabited place and that too after more than three months of the occurrence. Further, no empty was secured by the police from the place of occurrence at the time of first inspection of the spot. Thus, none could be wedded with the rifle so recovered.

11. The eye-witness account was furnished by Nazir Ahmad (P.W.4), who is the father of the deceased, and Muhammad Aslam (P.W.5), an independent eye-witness. We would first like to take up the evidence of Nazir Ahmad (P.W.4) as to the ocular account of the occurrence. This witness while appearing before the learned trial Court stated that he along with Nawaz came to the village Peer Ali at about 5/6 p.m. at the Dera of Mazhar on 26-8-2000. At about 9-00 p.m., Abbas (acquitted co-accused) came to the Dera and asked the deceased to accompany him. When they reached near the field of Mazhar the said Abbas in a loud voice addressed the other accused stating that he had brought Ahmad Nawaz deceased with him. The deceased also raised alarm whereupon the complainant rushed in the said direction. In his view, from the sugarcane field, the appellant and three other persons emerged who being previously known to the witness were duly identified by him. Mustafa accused raised a lalkara whereupon Hayat, appellant, fired a shot with his rifle at the deceased which hit him on the back and exited from the abdomen. The deceased on receiving the injury fell on the ground and later succumbed to the injury in the hospital. The witness saw the occurrence in the light of electric bulb. According to this witness after the occurrence he went to the police station along with the injured where a Razakar accompanied them to the D.H.Q. Hospital Okara. However, the police recorded his statement at the police station which he thumb marked in token of its correctness. The deceased was referred to Jinnah Hospital, Lahore for treatment where he died after 2/3 days as a result of injury suffered by him in the occurrence. Apart from the complainant, Liaquat and Muhammad Aslam P.Ws. also witnessed the incident. The complainant (P.W.4) is a resident of Syed Wala, Tehsil Nankana District Sheikhupura and is not residing at the village where the occurrence had taken place. In the F.I.R. he did not provide any detail as to why he had gone to the Dera of Mazhar. However, at the trial he mentioned that he had gone to the Dera of Mazhar in order to collect Rs.5,000 due from him with regard to sale of a buffalo. Mazhar who was a material witness in this case was not produced by the prosecution at the trial. The detail of the deal with Mazhar was not mentioned in the F.I.R. or in the examination-in-chief by this witness and was dilated upon in cross-examination in response to a question put by the defence. Obviously, this is an improvement made by the witness at the trial in order to explain and justify his presence at the place of occurrence. Apart therefrom this witness has made many other material improvements in his statement. For instance, in the F.I.R. he mentioned that he had seen the occurrence in the light of an electric bulb whereas at the trial he deposed that he had witnessed the occurrence in the light of electric bulbs implying that there were more than one electric bulb lit at the time of occurrence. His statement to the extent that Abbas accused on reaching the sugarcane field uttered in loud voice that he had brought the deceased with him is also an improvement from the statement made by him before the police. Similarly his deposition that Ahmad Nawaz deceased raised alarm upon which he proceeded in the direction of the place of occurrence is also a deviation from his earlier statement (Exh.PC). As mentioned before, this witness has given an account of the motive for the occurrence which we have disbelieved as being incredible. In his statement (Exh.PC) this witness has mentioned that Muhammad Aslam (P.W.5) and Liaquat P.W. were attracted to the place of occurrence on hearing the fire shot, which is against contrary to his statement made before the police. (Exh. PC). Further, this witness has proceeded to the Police Station with the deceased in an injured condition soon after the occurrence and his statement was recorded at the Police Station on which formal F.I.R. was registered. However, he has failed to explain as to why it took him almost 9 hours to report the matter to the police. In view of the inordinate delay in lodging of the F.I.R. coupled with the fact that this witness is not resident of the place of occurrence and his presence at the place of occurrence has remained unexplained, we conclude that this witness in all probability had not seen the occurrence.

12. Now adverting to the evidence adduced by Muhammad Aslam (P.W.5) at the trial, it has been noticed that this witness is a chance witness who according to his own showing was returning from the fields after answering the call of nature when as per chance he saw the occurrence taking place. In his cross-examination it has come out that this witness had travelled the distance of three acres to the other end of the village to ease himself although there was ample opportunity for him to do so close to his place of residence, further, according to the F.I.R. this witness was attracted on the report of a fire which obviously implies that he arrived at the place of occurrence after it had taken place as only one fire was shot in the entire incident. The account furnished by him as to the motive is also not convincing and to a certain extent in contradiction with the motive urged by Nazir Ahmad (P. W.4).

13. Although the medical evidence furnished by Dr. Muhammad Aslam Naqvi (P.W.2) who had first examined the deceased and Dr. Muhammad Akram (P.W.9) who had conducted the postmortem examination on the dead body of the deceased is in line with the ocular account to the extent of injury attributed to the appellant. However, the medical evidence can only provide corroboration to the eye-witness account which in the instant case has been disbelieved by us being fraught with infirmities.

14. From the above discussion, it is manifest that the prosecution has failed to prove its case against the appellant through any credible evidence. Consequently, we accept this appeal and set aside the conviction and sentence of the appellant. The death sentence is not confirmed. The murder reference is answered in the negative. N.H.Q. /M-340/L Appeal accepted.