2001 PLP 1628 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.202 of 1998 filed by Nazar Farid, and Muneer Ahmad, appellants, who were convicted and sentenced by learned Additional Sessions Judge-I, Pakpattan Sharif vide his judgment dated 12-6-1998 as under:-- (1) Nazar Farid, appellant,, death under section 302(b), P.P.C. with the direction to pay Rs.50,000 as compensation to the legal heirs of the deceased and in default six months' S.I. (2) Muneer, appellant, life imprison ment under section 302(b), P.P.C. with the direction to pay Rs.50,000 as compensation to the legal heirs of the deceased and in default six months' S.I.

2. Occurrence in this case had taken place at 5-30 p.m. on 21-1-1996 within the revenue estate of Kot Dewan at a distance of 8.5 k.ms. from Police Station Saddar, Pakpattan Sharif while the matter was reported to the police on the same day, at 9-00 p.m. by Jahangir complainant and the formal F.I.R. Exh.P.A.1 was recorded by Muhammad Ashraf M.H.C., P.W.7.

3. According to the F.I.R. the facts of the prosecution case are that on 21-1-1996, complainant, his sons Hakim Ali, Khadim Hussain and Muhammad Siddique son of his sister, were on their way to the house of one Abdul Karim at Village Bara and when at about 5-30 p.m. they reached near the Dhari of Cattle belonging to one Muhammad Sharif son of Baliya, in the area of Kot Dewan and Hakim Ali was ahead to them, he heard reports of fire and saw his son falling on the ground and when he and his companions rushed towards him, they saw Nazar Farid and Muneer sons of Bashir Ahmad resident of Kot Dewan running towards their house, with the fire-arms, after giving fire shots on the person of Hakim Ali. The complainant and his companions attended Hakim Ali and he was found to have expired. He further stated that a large number of persons attracted to the spot having heard hue and cry. Jehangir, the first informant, left Khadim Hussain and Muhammad Siddique near the dead body and proceeded to the police station for lodging the report. Motive behind the occurrence was that Hakim Ali deceased was facing trial in a criminal case for giving Churri blows to Muneer Ahmed and that 21-1-1996 (fateful day) was the date of hearing before the Illaqa Magistrate at Pakpattan Sharif and because of that grudge, both the accused in furtherance of their common intention committed Qatal-e Amad of Hakim Ali.

3. After registration of the formal F.I.R. Jaffer Ali A. S. I. P.W.10 went to the spot, prepared an unsealed site plan Exh. P.J, collected blood-stained earth and took the same into possession vide memo. Exh. P.K. on 1-2-1996, he arrested Nazar Farid, who in custody got recovered 7-MM Rifle through recovery memo. Muneer was arrested on 2-3-1996 and then the investigation was taken away by Muhammad Abbas S. H. O. P. W, 11, on 16-3-1996 Muneer accused got recovered Rifle 7-MM p.13, which was taken into possession vide memo. Exh. P.E. and after completion of the formal investigation both the accused were challaned to face the trial. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded not guilty and claimed false implication, report of the Chemical Examiner, reports of the Forensic Science Laboratory Exh.P.L., Exh.P.M. and Exh. P.N. respectively and the judgments of the learned trial Magistrate dated 3-12-1997 were also brought on record. After conclusion of the trial, the appellants were convicted and sentenced as stated above. Learned counsel for the appellant; after having read the entire prosecution evidence and other relevant material available on record submits that the appellants who are real brothers inter se have been falsely implicated in this case, it was an un-witnessed occurrence, the eye-witnesses were not present at the spot, the so-called eye witnesses are cooked up witnesses, the report of the Fire-arm Expert does not connect Muneer Ahmad appellant with the commission of offence, recovery of rifle at the instance of Nazar Farid is concocted one for the reasons that the crime empty and the rifle allegedly recovered from Nazar Farid have been planted upon him, earlier the present occurrence two criminal cases between the parties under sections 334/337, P.P.C. etc. ended into a compromise, so the prosecution has failed to prove the motive in this case, the complainant Jehangir is father of the deceased while Khadim Hussain P.W. is real brother of the deceased and so Muhammad Siddique P.W. is also related to the complainant party and the complainant had made a lot of improvements in his statement before the learned trial Court in order to falsely implicate the appellants. Further submits that the statements of Khadim Hussain and Muhammad Siddique P.Ws. were recorded later on by the police in order to make the same in line with the result of the post-mortem examination. He lastly submits that it is a case of no evidence and the appellants are entitled to clean acquittal. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the occurrence had not taken place in the dark hours, matter was reported to the police promptly, names of the appellants are mentioned in the F.I.R., Muhammad Siddique is father-in-law of Nazar Farid appellant so there was no reason for Muhammad Siddique to implicate his own son-in-law at the risk of destroying the house of his daughter who was married to Nazar Farid appellant and that the prosecution has been successful in proving this case against the appellants. We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, the occurrence had taken place on 21-1-1996 at 5-30 p.m., that is, after the "Maghrib Prayer". The police station was though at a distance of 8.5 k.ms. from the place of occurrence but the matter was reported to the police at 9-00 p.m. at "Nat Abadi Malik Pur" and the formal F.I.R. was recorded at 9-30 p.m. the same night with the delay of 3-1/2 hours in lodging the F.I.R. Motive given in the F.I.R. was that the deceased Hakim Ali son of the complainant had injured Muneer Ahmad, one of the appellant and the real brother of Nazar Farid the other appellant with knives, on the day of occurrence the said case was fixed in the Court of Area Magistrate Pakpattan Sharif and due to that grudge, the appellant committed the murder of Hakim Ali. It may be noted here, that two cases of causing injuries inter se between the parties were registered prior to the present occurrence. The first case arising out of F.I.R. No.164 was registered on 7-6-1992 against Hakim Ali deceased and Muhammad Suleman for causing injuries on the person of Muneer Ahmad under sections 334, 337-D, 337-F(ii) and 34, P.P.C., challan was submitted in the Court of Mr. Shahid Rafique, Magistrate Section 30, where the offence was compounded and both the parties entered into a compromise, on that ground an application under section 249-A, Cr.P.C. was moved, as a result whereof Hakim Ali and Muhammad Suleman were acquitted. The other case F.I.R. No.343 was registered on 16-10-1992 against Muneer Ahmad, one of the appellants and one Muhammad Sharif, Hakim Ali deceased was injured in this case by Muneer Ahmad and Shafi as alleged in the F.I.R., the case was pending before Magistrate Section 30, since 1992, charge was framed under section 324/34, P.P.C., the injured Hakim Ali and the complainant compounded the offence, so both Muneer and Shaft were acquitted from the charge. In these circumstances, we are of the considered opinion, that the prosecution has not been able to prove the motive against the appellants. It may be noted here, that though in the instant case Hakim Ali was murdered on 21-1-1996 but in case F.I.R. No.364 of 1992 in which Hakim Ali alongwith one Muhammad Suleman was accused, both the complainant and the accused compounded the offence at the time of confirmation of the pre- arrest bail, that may be in 1992 and on he basis of that affidavits Hakim Ali and Suleman were acquitted of the charge in 1997. Similarly, in case F.I.R. No-343 of 1992 Hakim Ali was the victim and the accused were Muneer and Shaft, it was registered on 16-10-1992 and affidavits of the complainant and the injured were available on the file of learned Magistrate and on the basis of that the accused moved an application under section 249-A, Cr.P.C. which was accepted and the accused were acquitted. Dr. Muhammad Siddique P.W.9 who conducted post-mortem examination on the dead body of Hakim Ali stated that probable time between death and post-mortem was about 18 to 24 hours. According to prosecution the occurrence took place at 5-30 p.m. on 21-1-1996, the post-mortem was conducted at 1-50 p.m. on 22-1-1996 so that occurrence could not be said to have taken place at the time mentioned in the F.I.R. but at any time in dark hours of the night on 21-1-1996. The doctor also stated that he received the dead body in the hospital at 1-00 p.m. on 22-1-1996. This shows that the dead body was despatched after a long delay to the hospital. Had the eye-witnesses been present as stated by them and the Investigating Officer if had completed the inquest report he must have despatched the dead body as early as possible and taking this aspect of the matter it should have been despatched between 8 to 10 a.m. on 22-1-1996. This delay in despatch of dead body to the hospital casts serious doubts upon the prosecution story rather it trends to show that the occurrence was un-witnessed. Khadim Hussain and Jehangir P.Ws. are real father and brother of the deceased while Muhammad Siddique himself stated that he was father-in -law of Nazar Farid one of the appellant. Muhammad Siddique P.W.4 admitted that his daughter was (Ghar Abad) but for the last 2/3 months prior to recording of his statement on 11-8-1997 and after the occurrence. We are not going to believe the story put forward by this witness. In fact the suggestion put by the defence counsel that his daughter who was married with Nazar Farid was (Ghar Abad) prior to the occurrence seems to be more plausible and reasonable because no father-in-law would depose against this son-in-law if his daughter was living happily with her husband. Muhammad Siddique P.W. had grudge against Nazar Farid appellant for not settling his daughter in his house and sending her to the house of her father Muhammad Siddique. We are thus of the considered opinion that Muhammad Siddique P.W. had falsely deposed against the appellants. Another important factor in this case is that the F.I.R. was lodged by Jehangir who is father of Hakim Ali deceased. He had not stated in the F.I.R. about the Fire-arms which the appellants were carrying at the time of occurrence even it was not stated in the F.I.R. that as to where the fires of both the appellants hit the deceased but before the learned trial Court Jehangir in his examination-in-chief stated that Muneer Ahmad and Nazar Farid appellants were armed with 7-MM Rifles and pointed out specific injuries. He was duly confronted with his statement Exh.P.A. It seems that the statements of Khadim Hussain and Muhammad Hussain P. Ws. were recorded by the police after getting the post-mortem report and also after the deliberation and consultation in connivance with the complainant. We, therefore, do not believe the presence of eye-witnesses at the spot. There is yet another important factor and that is, that Nazar Farid appellant was arrested on 1-2-1996, Muneer was arrested on 2-3-1996, rifle on the pointation of Nazar Farid appellant was recovered on 12-2-1996 and according to the report of Fire-arm Expert which is at page 28 of the paper book relating to recoveries from the appellants, the parcel .of crime empties was sent on 19-2-1996 that is after arrest of the Nazar Farid appellant and also after the alleged recovery of Rifle 7-MM from him while the rifle was sent to the expert on 3-3-1996. This is all concoction in order to falsely implicate the appellants. Moreover, according to the fire-arm expert, all the three crime empties recovered from the spot matched with the rifle of Nazar Farid appellant. It means that Muneer Ahmad appellant did not fire at the spot and was also not present at the spot because according to report of the Fire-arm Expert Exh.P.N. relating to recovery from Muneer Ahmad, the 7-MM Rifle was found to be in working order. No crime empty matched with his rifle, so no reliance can be placed on the report of Fire-arm Expert relating to recovery from Nazar Farid. The report of the fire arm expert relating to Nazar Farid appellant could have been a corroborative piece of evidence against him but we disbelieve the same and hold that it was a case of dishonest investigation from all angles. It also needs to be mentioned here, that the complainant has stated in the F.I.R. about causing of injuries by Muneer Ahmed to his son Hakim Ali but he did not mention that Hakim Ali had also caused injuries to Muneer Ahmad prior to the occurrence. He did not approach the Court with clean hands. The case got registered for causing injuries by Muneer Ahmad to Hakim Ali and vice versa, as noted earlier that both the parties compromised and compounded the offence. As a result of the above discussion we are of the considered view that it was an un-witnessed occurrence, parties were inimical towards each other, motive is not proved, so the question of false implication cannot be ruled out specially when no independent witness has been produced by the prosecution. As an abundant caution we while extending the benefit of doubt to the convict- appellants accept their appeal and set aside the conviction and sentence recorded against them by the learned trial Court. Both the appellants are in jail, they shall be released forthwith if not required to be detained in any other case. The death sentence awarded to Nazar Farid appellant is not confirmed. Murder Reference to his extent is replied in the negative. H.B.T./N-104/L Appeal accepted.