2007 PLP 92 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Muhammad Riaz, appellant along with his wife Mst. Jantan Bibi, his sister Mst. Anwar Bibi and her husband Noor Akbar was tried by the learned Sessions Judge, Jhang, in lieu of case F.I.R. No.7 registered at Police Station, Langrana on 3-1-1998 for offences under sections 302/109/34, P.P.C. for having caused the death of Muhammad Tahir. Vide judgment dated 23-9-2000, the learned trial Judge, while acquitting the aforesaid co-accused, convicted Muhammad Riaz for offence under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay Rs.10,000 as compensation to the legal heirs of the deceased.

2. Muhammad Riaz has challenged his above noted conviction and sentence through the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No.720 of 2000 seeking confirmation or otherwise of death sentence imposed upon the appellant. Both these matters are being decided through this consolidated judgment.

3. The facts of the prosecution case, per complaint Exh.P.A. recorded by Muhammad Yaqoob, Inspector/SHO, P.W.13, at the instance of Mst. Kausar Bibi, complainant/P.W.1, which based the registration of formal F.I.R. Exh.P.A./1 in brief, are that her father Yasin had divorced her mother Mst. Sahib Bibi, who, subsequently, contracted her Nikah with Muhammad Anwar and out of their wedlock Muhammad Tahir was born. Muhammad Tahir was aged about 18/ 19 years. After the death of his parents, i.e. Mst. Sahib Bibi and Muhammad Anwar, Muhammad Tahir was left alone and was living with his paternal uncle Nusrat. The said Nusrat had already alienated his land in favour of his brother Muhammad Anwar. About ten days prior to the occurrence, Nusrat died. The complainant along with his maternal uncle Muhammad Nawaz/P.W.2 and one Bakhat Jamal had come to the house of Muhammad Tahir for Fateh Khawani. Muhammad Riaz, appellant (who was cousin of Muhammad Tahir), Noor Akbar, Mst. Anwar Bibi and Mst. Jantan had been compelling the complainant party since 3/4 days earlier to the occurrence to marry the appellant's daughter with Muhammad Tahir (deceased). As the appellant and Noor Akbar were giving the hand of appellant's daughter to Muhammad Tahir to get his land, the complainant party refused to accede to the said demand, whereupon the accused bore a grudge in their mind. They threatened Muhammad Tahir to commit his murder. The complainant sent Sikandar and Ahmad Yar /P.W.3 to the house of Riaz to pacify the matter. On return, they told the complainant that when they reached the house of the appellant on 2-1-1998, they saw Riaz, Noor Akbar, Mst. Anwar Bibi and Mst. Jantan Bibi making conspiracy for the commission of murder of Muhammad Tahir. On 3-1-1998 at about 7-00 a.m. when the complainant along with Muhammad Nawaz and Bakhat was present at the Dhari of Muhammad Tahir, suddenly, Riaz, while armed with .12-bore gun, came there and raised Lalkara that Muhammad Tahir would face the consequences of not contracting marriage with his daughter and giving land to him. Riaz fired two successive shots from his gun hitting Muhammad Tahir on this head and abdomen. Noor Akbar (acquitted accused) was also present at a distance of few Kanals from the spot in order to protect Riaz. Muhammad Tahir died at the spot. As to the motive, it was alleged that Muhammad Tahir, deceased, being the only son of his parents, owned sufficient agricultural land and in order to grab his property, Riaz, appellant, being in league with aforesaid acquitted co-accused Noor Akbar, Mst. Anwar Bibi and Mst. Jantan, caused the murder of Muhammad Tahir.

4. On receipt of information about the occurrence on 3-1-1998, Muhammad Yaqoob, Inspector/P.W.13, went to the spot, where Mst. Kausar Bibi, complainant/P.W.1, got recorded her statement/complaint Exh.P.A./1, which was sent to the police station for registration of case. Then the Inspector/Investigating Officer examined the dead body, prepared its injury statement Exh. P. D./1, inquest report Exh.P.E./1 and got the post-mortem examination of the deceased. After post-mortem examination, the Investigating Officer took into possession the last worn blood-stained clothes of the deceased, i.e. shirt P.3, Shalwar P.4 and a phial containing four pellets, through memo. Exh.P.F. He collected blood-stained earth from the spot vide memo. Exh.P.H. On 22-1-1998, Muhammad Raiz accused/appellant, was arrested and on 25-1-1998, while in custody, he led to the recovery of .12-bore gun P.1 and two live cartridges P.2/1-2, which were taken into possession through memo. Exh.P.B., attested by Mumtaz Hussain/P.W.4. After completion of investigation, the appellant along with his co-accused was sent up to face the trial.

5. In order to prove its case at the trial, the prosecution examined thirteen witnesses. Ocular account was furnished by Mst. Kausar Bibi, complainant/P.W.1, and Muhammad Nawaz. In addition to that, they also stated about the motive. Their statements are in line with the story given in the F.I.R. Dr. Rahmat Ullah/P.W.7 conducted post-mortem examination on the dead body of the deceased and observed two fire-arm injuries: one on his abdomen and the other on front of his right ear, which, according to the doctor, were ante-mortem and were sufficient to cause death in ordinary course of nature individually and collectively. The duration between the injuries and death was immediate, while the time elapsed between death and post-mortem examination was 6 to 12 hours. Mumtaz Hussain/P.W.4 stated about the recovery of .12-bore gun at the instance of the appellant. Muhammad Yaqoob, Inspector/P.W.13 stated about the drafting of complaint, its dispatch to the police station for registration of the case and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication in the case in the following words:-- "All the P.Ws. belong to Sial family whereas I am Jappa by caste. As Muhammad Anwar deceased, the real father of Tahir deceased had abducted Mst. Sahib Bibi mother of the complainant with whom she married later on, the relationship between our family, with the family of the complainant party, the resident of different village, became strained. We had no visiting terms inter se with the complainant party thereafter. However, my uncle Nusrat, Tahir deceased and I resided in the same house and our relations were cordial. The complainant party desired to give hand of some girl from Sial family in marriage with Tahir deceased which I opposed and Tahir deceased also did not want to do so. Due to this grudge, the complainant party of this case managed the murder of Tahir deceased. The complainant party wanted to extort money and that due to this reason; they have involved us in the instant case falsely." Neither the appellant appeared as his own witness as contemplated by section 340(2), Cr.P.C. nor did he produce any witness in his defence. However, he placed on record copy of Shajra Nasab of his family as Exh. D.E.

7. Learned counsel for the appellant submits that both the eye-witnesses are chance witnesses who had strained relations with the appellant; that it was an un- witnessed occurrence, as is evident from the fact that none of the eye-witnesses made any attempt to report the matter to the police; that both the eye-witnesses have contradicted each other almost on all material points; that the motive set up by the prosecution could not be proved during trial, rather it was falsified by the circumstances of the case; and that recovery of gun is of no consequence, as the same was not sent to the Forensic Science Laboratory.

8. Conversely, the learned counsel appearing on behalf of the complainant has submitted that both the witnesses had no enmity to involve the appellant in a false case; that they have reasonably explained their presence at the spot at the time of occurrence; that the discrepancies are minor in nature and of no consequence; that both the witnesses have given consistent account of the occurrence which is supported by the medical evidence as well as the recovery of the gun at the instance of the appellant; that it was a day-light occurrence and the matter was reported to the police without any delay; that the acquittal of rest of the accused would not benefit the appellant, as they were accused of a minor role and had not caused any fire on the deceased. The learned counsel appearing on behalf of the State, while adopting the line of arguments of the learned counsel for the complainant, has supported the impugned judgment.

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

10. The relevant facts, as gleaned out of the prosecution evidence, are that Mst. Sahib Bibi, mother of Mst. Kausar Bibi first informant/P.W.1 and sister of Muhammad Nawaz/P.W.2, eloped with Anwar and later on married with him. Out of their wedlock, Muhammad Tahir was born. The deceased and his parents lived in Chak 154/JB within the territorial jurisdiction of Police Station, Langrana, District Jhang, while Mst. Kausar Bibi lived in a different Chak, i.e. Chak 156/JB, and Muhammad Nawaz also lived in a different Chak (Chak 184/JB). Both the witnesses had gone to the house of Tahir deceased for the reason that ten days prior to the occurrence, as per F.I.R., Nusrat, uncle of the deceased died and the witnesses went there for Fateh Khawani. During their stay there, Muhammad Tahir was murdered on 3-1-1998 at 7-00 a.m. while he was present in his Dhari. Undeniably, both the witnesses are not only related to the deceased but are also chance witnesses. So their evidence needs deeper scrutiny. According to these P.Ws., Muhammad Tahir was murdered by the appellant at 7-00 a.m. but surprisingly, neither P.W. nor P.W.2 nor Bakhat son of Noor Jamal, who was named in the F.I.R. as witness but not produced during trial, made any attempt to report the matter to the police and the statement of Mst. Kausar Bibi, first informant, was recorded by Muhammad Yaqoob, Inspector/P.W.13, when he reached the spot at 9-00 a.m. There is no explanation on the record as to why the matter was not reported to the police for two long hours by any of the witnesses. When cross-examined on this point, P.W. replied that till the arrival of the police, they remained sitting at the place of occurrence and did not send any person to the police station to report the occurrence. She further admitted that her statement was recorded after preliminary investigation. As per record (Exh.P.A.), statement of Mst. Kausar Bibi was recorded at the spot by P.W.13 to 9-00 a.m., i.e. after two hours of the murder, while P.W. 1 stated in cross-examination that the police reached the spot after 7/8 hours of the occurrence. This is very material discrepancy and casts doubt on the presence of P.Ws.1 and 2 at the spot at the relevant time. Both the P.Ws. have also contradicted each other on material points, which are as follows:-- (I) that P.W. stated that Muhammad Tahir deceased was fired upon while he had taken the buffaloes outside the room for tethering. She further explained that the deceased had already tethered three cattle outside the room and while he was tethering the fourth one, the occurrence took place. On the same point, P.W.2 stated that at the time of occurrence, the deceased was milking the buffalo; (II) that P.W.I stated that Tahir fell down on the ground on sustaining injuries; no cot was lying in the room at that time and the police examined the dead body intact after arrival, while P.W.2 stated that the dead body was lying on the cot, when the police reached the spot, outside the Dhari; (III) that P.W.1 stated that the place of occurrence was at a distance of 7/8 Killas from the village Abadi, while P.W.2 stated that it was at a distance of one Killa from the village Abadi; and (IV) that according to P.W.1, the only door of the Dhari opened towards the West, while according to P.W.2, it opened towards the South. The above mentioned contra dictions cannot be ignored and these reflect on the quality of the evidence brought forward by the prosecution; most importantly, P.W. admitted that the investigation of the case was also conducted by the Range Crime and she appeared before the Investigating Officer; it was put to her that before the Investigating Officer of Range Crime, she had stated that she along with Mst. Anwar Bibi, Mst. Jantan Bibi and other women reached the spot after hearing of firing and found Tahir deceased lying dead in the room. Of course, P.W.1 denied the suggestion and was duly confronted with Exh.D.A. available at page 76 of the Paper Book. P.Ws.1 and 2 also differed on the point of date of death of Nusrat, uncle of the deceased, and the date of their going to the house of Tahir deceased for the purpose of Qul Khawani. The above noted circumstances make the presence of the P.Ws. at the time of occurrence doubtful.

11. According to the motive as set down in the F.I.R. Riaz appellant, who is cousin of the deceased was pressing Tahir and his relatives that they should marry Tahir with his daughter. The motive behind the marriage was wealth of the deceased. It was further alleged that since Tahir and other relatives did not agree, therefore, threat was extended by the appellant that Tahir would be murdered as a consequence. In order to put force behind that, it was added in the F.I.R. that on 2-1-1998 at evening time, Sikandar and Ahmad Yar, husband of P.W.1 went to the house of Riaz where they saw that Riaz along with other acquitted accused was present and they were conspiring to murder Muhammad Tahir. The ridiculous story of conspiracy was rightly disbelieved by the learned trial Court and the aforesaid co-accused were acquitted. However, the rest of the motive also could not be proved during trial. Firstly, P.W. admitted that the eldest daughter of Riaz appellant was only 6/7 years old at the time of occurrence and was not of marriageable age. Secondly, it was admitted that Riaz and the deceased lived in the same premises and there was no evidence of any enmity or ill-will existing between them. As noted above, the mother of P.W. and sister of P.W.2 was divorced by her earlier husband. She contracted Nikah with father of Muhammad Tahir subsequently and she started living in a different Chak. It is not in evidence that P.Ws. 1 and 2 used to visit the house of Mst. Sahib Bibi after her second marriage. They were rather annoyed over this affair. It appears that after the murder of Muhammad Tahir who was a wealthy man, the P.Ws. showed their interest in him because of his wealth.

12. The ocular account is not supported by medical evidence as well as, according to P.W.1, the fire was caused from a distance of 10/12 feet, while according to P.W.2, the same was caused from a distance of 15 feet, whereas according to medical evidence, the fire was affected from a very close range; blackening was present on the wounds and a wad was recovered from the cranial cavity and one wad and three pellets were recovered from abdominal cavity.

13. As far as recovery of 'gun is concerned, that is of no consequence, as neither any empty was recovered from the spot nor the gun was sent to any Forensic Science Laboratory to establish whether it was in working order or not.

14. For what has been said above, we have come to the conclusion that it was an un-witnessed occurrence and the prosecution case was replete with doubts. Hence, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case.

15. As a necessary corollary to the above, the death sentence is not confirmed. The murder reference is answered in the negative. H.B.T./M-489/L Appeal allowed.