2007 PLP 327 (MLD)

MUNIB AHMED KHAN, J.

On l0-8-2006 it was consented by Mr. Mansoob Ali Qureshi, learned counsel for the appellant as well Mr. Muhammad Sabir Haider, learned Assistant Advocate-General that C.M.A. No. 632 of 2006 and regular hearing may be taken together, therefore, both these matters have been taken up together. Brief facts of the prosecution case are that on 23-2-1999 at 7-45 hours the Complainant Muhammad Shah son of Taj Zareen lodged F.I.R. stating therein that he is labourer and residing with his family and step-brother Faqir. He also disclosed that he is working in a truck and his step brother was a contractor. He also stated that they are inhabitants of village Monda Post Office Mayor, Tehsil Samr Bagh, District Dir and his brother Faqir Shah having a plot near Malik Chowk, on which a dispute was going on with Zaman. On 22-2-1999 he came back from working and slept after taking meal. At about 2-00 a.m. he woke up for works, his wife Zakia was sleeping with children in one room and Faqir Shah was in another room. He went for working. His daughter namely Shamia aged about 10/11 years closed the door. At about 6:30 hours his master Anwar informed him that his wife and brother have been killed by some one. He reached home at 7-30 a.m. His daughter told that at about 10-00 p in. Juma Khan wanted to carry her uncle Faqir Shah but deceased refused. At about 3-00 a.m. they were slept then Juma Khan and Zaman having hatchet in their hands entered into the house of victim/deceased, attacked her mother, Zakia with the hatchet and hammer, resultantly, she expired on the spot. The daughter of Complainant also disclosed that she saw that three persons were also beating her uncle with hatchet in their hands and she can recognize them by their faces. The deceased also expired. She along with younger sister Azra aged about 6/7 years carne forward to save their uncle but Jumma Khan hit Shahmia on her head with hatchet and Zaman also attacked on her right feet. Her younger sister Azra bite on the leg of Jumma Khan. Due to their hue and cry the accused fled away. The accused was arrested on 7-3-1999 and since then he is in custody. Challan was submitted. According to which 15 witnesses were cited out of which 8 witnesses were examined against him. Prominent witnesses in the case could be Baby Shamia daughter of Muhammad Shah, Farmanullah, Muhammad Shah, Haider Ali, Investigating Officer and Imtiaz Ahmed Niazi the 2nd Investigating Officer. Keeping in view the contents of F.I.R., Muhammad Shah has received information from his employer at Landhi that his wife and step-brother Faqir Shah have been killed. He reached his house and was further told by his daughter Shamia that his wife and step-brother have been killed by Jununa Khan son of Mohammad Kabir and Zaman Shah and three unknown persons who can be recognized if they came in front of the girl. In the circumstances, the most important witness could be Baby Shamia, as whole story revolved around her. She has not been examined in the case but her statement was recorded before the Magistrate under section 164, Cr.P.C. there are three versions of this girl, which arc coming on record, firstly, which has been incorporated in the F.I.R., secondly in the 164, Cr.P.C. statement and thirdly in her statement which has been given by her to Farmanullah. It may be necessary that all the three statements are to be perused carefully to search the varcity of the Complaint. In her statement given to her father and narrated in the F.I.R., she has named Jumma Khan and Zaman Shah, who were allegedly armed with hatchet, with three other persons hatchet and hammers and could be recognized by the girl. All these five persons killed Mst. Zakia and Faqir Shah while very strangely they let lose the witness Shamia and Azra who have recognized them and knew at least Jumma Khan and Zaman Shah. In the second version of Shamia which has been given to Farmaullah, a witness, who has been examined is that some persons have killed her mother and uncle Faqir, Farmanullah was the only important witness, who has been cross-examined in Court but his evidence has not supported the case of the police. He has submitted that the police recorded statement 161, Cr.P.C. and accused present in Court (Zaman Shah) is not the accused, whose name was disclosed by the minor Shamia and Saleem. He submitted that he has gone to the house of the relative of deceased Faqir Shah and Zaman Khan, who reside in the vicinity. He further states that children informed him that the persons who had committed murder have muffled their faces. He further submitted that he went to the house of Zaman and relative of deceased Khan then from their condition, they appeared to have woken up from sleep. The Third version as given in 164, Cr.P.C: statement of Shamia is that she was at home in the night of 23-2-1999 while at 3 O'Clock Jumma attacked with hatchet over by head. I woke up instantly as I was injured and bleeding. I was beaten at my legs and my small sister Azra was also beaten by axe. In the said statement 'only name of Zaman and Jumma have been disclosed, while no other person has been accused nor presence of third person has been pointed out. If this statement is scrutinized then it will reveal that girl of 10/11 years cannot be in senses after being hit by hatchet while sleeping, as alleged, she cannot recognize her attackers in such condition. She has further stated that her mother was killed with hatchet but in the second sight she has stated that her mother cries "help" "help" and that after hearing the cries all mohallah people carne there. This statement recorded under section 164, Cr.P.C. is contrary to the statement given to Farmanullah as, had there been such a situation of gathering of the people then girl would have not gone to Farmanullah for complain as the persons of the vicinity were already there. Secondly, when Zakia has already killed then question of her cries does not arise and third statement which has been reproduced by her father Muhammad Shah in his F.I.R. also does not tally with these two statement, as in that statement of Shamia accused persons have not muffled their faces and she could recognize all the three persons, beside Juma Khan and Zaman Shah. The said girl although has been examined under section 164, Cr.P.C. but in the absence of the counsel of the accused persons and that all her three statements does no-t tally with each other. She has not been subjected to cross-examination. Leaving thereby all the anomalies, another girl Azra can be a witness in the case but she has even not been named as witness. Another boy Saleem who came with Shamia and Farmanullah is missing from the record. Now the main evidence can be of Mohammad Shah but he has never appeared as witness, has avoided . and changed his address and could not be traced out. His statement in F.I.R. shows that he returned from working in the night of 22-2-1999 and after taking meal, he slept till 2-00 p.m. then again he left for his work. It is strange that immediately after 3/4 hours a person is going back to his work from Mominabad, Orangi Town to Landhi. Moreover, there were two Investigating Officers, namely, Haider Shah and Imtiaz Ahmed Niazi but none of .them have been examined, therefore, prosecution version remained uncorroborated. Learned District Judge has only relied upon evidence of Farmanullah and fact that Zakia and Faqir Shah have been murdered, which factual position has not been denied by anybody but it was to be seen as to whether both the persons were murdered by the accused or not. It is to be further pointed out that there are two mashirs of recovery, namely, Farmanulalh and Syed Mobeen P.Ws. Exh.20. In cross-examination he has stated as under:-- "It is correct that I do not know the contents of Exh.8C and 8D as the police obtained my signatures on plain papers. It is correct that I did not see any wardat". Another witness Fannanullah???? in his???? statement,???????? as mashir/witness Exh.8 has stated that:-- "I had seen three hatchets one hammer at the place of incident and thereafter police took them to police station and I saw, them at police station also". The above statement established that incriminating articles were not scaled at the place of wardat before mashirs, therefore, sanctity of this recovery by way of evidence is doubted. The another aspect of the evidence of Farmanullah that he has stated in cross-examination that it carne in the papers that on account of illicit relation between Dewar and Bhabhi they were murdered. According to the story of the prosecution, both small girls Shamia and Azra were also injured and no medical report of either of girl has been produced, therefore, section 324 is not attracted and the version of the girl itself that she was injured by some intruders is also doubted. It has also not come on record as to what is nexus between incriminating articles as well as the deceased as these articles were not sent to Chemical Examiner for report nor were scaled at the spot, therefore, these articles cannot be linked with the murder. It has been observed that the Complainant Mohammad Shah has not only A avoided to appear as witness himself but he restrained the girl Shamia from appearing as witness in case and for that he changed the residence to unknown place and never had any contact with police. This aspect raised many -questions. Was he afraid of the girl's statement and her cross-examination? Is the rumor of illicit relation between Dewar and Bhabi was true? Why he did not get included the name of Saleem and Azra as witness'? In all, in the above circumstances, there is strong doubt B for prosecution story and benefit of doubt is to be given to the accused, who is in custody since 2-3-1999 without any interval. The learned Assistant Advocate-General after realizing the above factual position, has no objection if the appeal is accepted subject to the sentence, which the appellant has already served. In the circumstances, the judgment of the trial Court is modified to the extent that the accused is awarded sentence which has already undergone by him and he shall be released forthwith if not required in any other case. The order of trial Court is modified to the extent that punishment is reduced to the extent the accused has already undergone. By a short order, dated 27-9-2006 the order of the learned trial Court was modified as above, and these are the reasons for the same. The appeal stands disposed of in the above terms. H.B.T./M-165/K????????????????????????????????????????????????????????????????????????????????? Order Accordingly.