2023 PLP 899 (MLD)

SOHAIL NASIR, J.

Fazal alias Faza, Muhammad Sadiq (real brothers) and Allah Ditta (appellants) along with Sher Muhammad, Pir Bakhsh, Fayyaz, Fateh Muhammad and Abid were tried in case FIR No.427 (PD) recorded on 21.07.2015 under sections 365/302/109/ 148/149, P.P.C. at Police Station Luddan District Vehari on the complaint of Riaz Ahmad (complainant) for the allegations of abduction and commission of Qatl-i-amd1 of Tanvir Riaz (son of complainant). On conclusion of trial vide judgment dated 31.05.2017 passed by the learned Additional Sessions Judge Vehari, all the appellants were convicted under sections 302(b)/34, P.P.C. and sentenced to imprisonment for life each. They were also ordered to pay Rs.200000/- (two lacs) each as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. In default of payment of compensation, they were ordered to further undergo six months' SI each. Benefit of section 382(B)2, Cr.P.C. was also extended to them. On the basis of same judgment all remaining accused were acquitted from the case. The learned trial court further held that charges under sections 365/109/148/149, P.P.C. were not proved.

2. On the strength of Criminal Appeal (1218 of 2017), appellants have challenged their convictions, whereas pursuant to Criminal Revision (319 of 2017) complainant has asked for enhancement of sentences awarded to appellants. As both the matters are outcome of one and the same judgment hence being decided together by way of this single judgment.

3. Facts of the case are that Mubashir Ali Sub-Inspector (PW-10) on receipt of information of this occurrence arrived at Ahmadabad, where he recorded the statement (PD/1) of Riaz Ahmad (PW-6). He maintained that on 21.07.2015 at about 08:00 a.m. he along with his son Tanvir Riaz (deceased) and Salma Bibi (PW-7)/wife of Tanvir Riaz were busy in their fields and at that occasion Fazal alias Faza armed with 'Toka' Muhammad Sadiq, Sher Muhammad (empty handed), Allah Ditta having a pistol, Pir Bakhsh, Fayyaz, Fateh Muhammad and Abid all in possession of `Sotas' along with two unknown persons reached there; they forcibly abducted Tanvir Riaz; on hue and cry, Fayyaz Ahmad (PW-8) and Muhammad Sajjad (not produced) also attracted there; they chased the assailants and found that Tanvir Riaz was taken in the courtyard of the house of Fazil alias Faza where Sadiq and Sher Muhammad were holding right and left leg of Tanvir Ahmad respectively whereas, Allah Ditta and Pir Bakhsh were holding Tanvir Riaz from his arms; Fazil alias Faza by giving repeated blows of Toka chopped out left leg of Tanvir Riaz; they/complainant etc. when made hue and cry, Fazal alias Faza gave further successive blows on both the arms of Tanvir; when they/complainant etc. tried to apprehend the assailants, they were succeeded to escape whereas Tanvir Riaz had died at the spot. The motive alleged by complainant was a dispute between relatives.

4. Mubashir Ali SI made an endorsement and sent the complaint to police station through Ali Sher Constable on the basis of which FIR (PD) was recorded by Muhammad Iqbal Head Constable (PW-2). During investigation Sher Muhammad, Fayyaz, Fateh Muhammad and Abid were declared innocent and discharged from the case vide an order dated 16.09.2015 passed by the learned Judicial Magistrate.

5. On conclusion of investigation report under section 173 (Challan) was submitted in Court.

6. On 20.01.2016 a charge under sections 365/302/109/148/149, P.P.C. was framed against appellants and their co-accused for which they pleaded not guilty and demanded their trial.

7. In support of its case prosecution had produced Dr. Akhtar Ali (PW-1), Muhammad Iqbal Head Constable/Moharrar and author of FIR (PW-2), Raja Usman/draftsman (PW-3), Mubarik Ahmad Constable who escorted the dead body for postmortem (PW-4), Allah Rakkha a witness who identified the dead body (PW-5), Riaz Ahmad/complainant and eye-witness (PW-6), Salma Bibi/eye-witness (PW-7), Fayyaz Ahmad/eye-witness (PW-8), Latif Ullah Sub-Inspector/second Investigating Officers (PW 9) and Mubashir Ali Sub Inspector/first Investigating Officer (PW-10).

8. Muhammad Sadiq (being won over), Mazhar and Shamim Constable (being unnecessary) were given up by the learned ADPP who after producing the reports of PFSA (PP & PQ) had closed prosecution's evidence.

9. In their common versions appellants maintained that it was an unseen and blind murder; deceased was a man of bad character involved in number of criminal cases of abduction and rape having enmity with different people.

10. Fazal alias Faza, Asif, Sadiq and Allah Ditta opted to produce defence evidence but remaining not. However, all did not opt to appear in terms of section 340(2), Cr.P.C. Later on, as evident from order dated 05.04.2017, appellants had withdrawn their desire to produce defence evidence.

11. Learned counsel for appellants contends that it is the duty of prosecution to prove its case beyond reasonable doubt but said duty has not been discharged in this case, therefore, the learned trial court wrongly convicted the appellants; statements of witnesses are in contradiction to each other; conduct of witnesses throughout the occurrence was abnormal who did not bother to interfere so as to save Tanvir Riaz; if appellants and their co-accused came with a specific object of murder of Tanvir Riaz, there was no reason to take him in the house of Fazal which was at the distance of about seven Acres; witnesses are inimical due to earlier recorded FIRs against deceased; crime scene in the house of Fazal alias Faza has not been established in view of the inquest report and statement of Investigating Officer; delayed post mortem examination and late arrival of dead body in the hospital also indicates that none of the witnesses were present at crime scene and in fact it was a blind murder. He finally maintains that the learned trial court did not appreciate the evidence in a proper manner and wrongly convicted the appellants.

12. On the other hand, both learned counsel for complainant and learned ADPP jointly contend that it is a case in which FIR was recorded without wastage of time, so there was no question of concoction, deliberation or consultation; in the promptly lodged FIR the manners and details of occurrence with the names of accused and their roles are fully described; without further wastage of time deceased was taken to hospital and in a short span of duration his post mortem was also conducted; medical evidence corroborates the version of complainant and eye-witnesses; defence in cross-examination was not able to shatter the credibility and worth of any of the eye-witness who were quite natural having no enmity or reason for false involvement of appellants and their co-accused; discharge of four accused by the learned Magistrate on the recommendations of Investigating Officer cannot stand in the way of prosecution who from day one specifically alleged involvement of all accused including the appellants and the witnesses also stated so while appearing in trial court; acquittal of five accused shall not be fatal for prosecution because that was on the basis of specific reasons; postmortem report has fully supported the story narrated by the complainant and his witnesses with regard to occurrence. All they finally maintained that as prosecution had proved its case beyond reasonable doubt, therefore, the appellants have been rightly convicted and they deserve the sentences of death instead of sentences awarded by the learned trial court.

13. HEARD

14. Ocular account of this case is revolving around the testimony of Riaz Ahmad (PW-6) Salma Bibi wife of deceased (PW-7) and Fayyaz Ahmad (PW-8).

15. Fayyaz Ahmad has been proved a chance witness despite his best efforts to claim otherwise. He in the very first line of cross-examination admitted that he was the resident of Moza Mehroo Baloch. This is not an undisputed fact that said place was at distance of about 10/15 Kilometers from venue of crime (Ahmadabad). He is the person who was having 5 kids and a shop in Moza Mehroo Baloch. Although, he stated that he came one day earlier in the village to see her relatives/complainant etc. but he was completely failed to show any strong reason which may convince this Court that on the day of occurrence he was present in Ahmadabad. His relatives may be in Ahmadabad but this fact alone cannot be considered as a valid and good reason when he is a witness in the case of capital charge. He was running the shop in his village Mehroo Baloch, so keeping in view nature of his work there was no justification for him to be present at crime scene. His dishonesty is evident from his statement that despite the fact he was resident of Mehroo Baloch which he admitted in cross-examination, he gave his address in his particular as of Moza Ahmadabad.

16. Same position is with reference to Riaz Ahmad/complainant who although is the resident of Moza Ahmadabad but still had a challenge to establish his presence there. Admittedly, he was driver by profession and for the last 40 years he was working with one Peer Mazhar Hussain Shah who was the resident of Luddan at a distance of 2.5 Kilometers. He admitted in cross-examination that he used to reside at the Dera of Peer Mazhar Hussain Shah for the last about 40 years who is owner of land measuring 5 squares and that other employees of Peer Mazhar Hussain Shah were also residing at the said Dera. He never claimed that he used to return to his house every day. For the sake of arguments, if it is believed that he had to be present in the house in evening as answered by Salma Bibi (PW-7), it means that in the morning he was supposed to go at the place of his duty. Considering this fact it can be easily understood that to work at the land was not his routine so he was under obligation to offer an acceptable reason for his presence in the field on the day of occurrence but the position is otherwise.

17. Reverting to the statement of Salma Bibi (PW-7), it is proved that she at the most was a witness of abduction of her husband because thereafter she was sent to her home. She, therefore, did not witness that how and in what manner subsequent to abduction Tanvir was done to death by the assailants. This fact that she went to her house after abduction is conceded by all the private witnesses of this case. Her statement is also contradicted by the first Investigating Officer Mubashir Ali SI (PW-10), when she stated that her statement was recorded in police station but it was denied by the Investigating Officer.

18. Tanvir was not animal or stranger or alien for them but their own blood, so what they were expected to do naturally at the time of occurrence, they did not do. Riaz Ahmad during entire occurrence did not try to interfere to rescue his real son from the clutches of the assailants. No doubt that according to the allegations, the assailants were eight in numbers and armed with Toka/Dandas etc. but in such a situation fear cannot sustain throughout because the natural reaction for real father, finding the life of his son in danger, had to be in a way to intercept or to challenge the appellants and accused for the purpose of saving his life. He stated that after the occurrence when he lifted his son, his hands and clothes were smeared with blood. He claimed that he produced those clothes before the Investigating Officer when he met him for the first time but that fact is not supported from the statement of Mubashir Ali SI (PW-10).

19. Similarly, Salma Bibi who was the real wife of deceased although maintained that she scuffled with assailants and her clothes were torn but even those clothes were not produced before the Investigating Officer in support of her version.

20. The unnatural conduct still continues because none of the private witnesses bothered to inform the police which fact they admitted and even Mubashir SI (PW-10) categorically replied that none from the complainant party informed the police about this occurrence.

21. It is too not understandable that if eight persons armed with weapons emerged in the field, where complainant etc. and deceased were working and their ultimate object was to eliminate Tanvir Riaz, why he was taken to the house of Fazal alias Faza that was at a distance of about 7 Acres from there? Prosecution has no valid argument or explanation in this context.

22. Even about place of occurrence, there is serious doubt in prosecution's case. As evident from FIR murder took place in the house of Fazal alias Faza (appellant) whereas, column No.1 of the inquest report (PB) shows that the dead body was found at a tube well No.1 Moza Ahmadabad which place was at a distance of about 5 Acres from the house of Muhammad Fazal. This entry was also shown to Mubashir Ali SI (PW-10) who admitted it without any reservation and even Dr. Akhtar Ali (PW-1) conceded that when he received the inquest report the said entry was there. No doubt that in rough and scaled site plans, the dead body was shown in the house of Fazal alias Faza but prosecution was under heavy burden to clarify that if it was the position then how in the inquest report the dead body was shown at tube well? Prosecution since its existence never challenged the entry in inquest report and even during trial did not ask the learned trial court for re-examination of the Investigating Officer for the purpose of any clarification. In these circumstances, when prosecution's own case is suffering from self-contradiction, benefit thereof shall go to appellants and none else.

23. Occurrence took place at 08:20 a.m. Complaint (PD/1) was recorded by Mubashir Ali SI at 09:00 a.m. who before 'completion of said document had prepared the application for post mortem examination and inquest report, as evident from his endorsement, and sent the dead body to the hospital through Ali Sher Constable. The hospital was not at a considerable distance as according to Mubarak Ahmad Constable he arrived there at about 11:00 a.m. but this position was seriously in conflict with the statement of Dr. Akhtar Ali (PW-1) who in opening lines of his examination- in-chief categorically said that dead body was received in hospital at 01:30 p.m and he conducted the autopsy at 02:20 p.m. This important fact of the case has confirmed the opinion of this Court that the eye-witnesses were not present at crime scene. It is therefore further established that even the complaint (PD/1) was not recorded at the given time, which finally indicates some foul play in prosecution's case.

24. It is the case of prosecution as depicted from complaint that Tanvir Riaz had died then and there at the spot whereas, Dr. Akhtar Ali in his examination-in-chief specifically added that time between injuries and death was within about 1/2 hours. This fact too negates the version of complainant and his witnesses.

25. Coming to the statement of Dr. Akhtar Ali (PW-1) who observed four incised wounds on middle of palm of right hand, across palm of right hand, inner half of right wrist joint, middle palm of left hand as well as two other injuries in shape of imputation of left leg and multiple bruises on the outer and back side of right thigh, it requires no lengthy discussion for the reason that medical evidence at the most is a corroborative or supportive piece of evidence and once the ocular account is disbelieved this piece of evidence alone cannot be a reason for conviction.

26. Reverting to recovery of 'Toka' (P4) at the instance of Fazal alias Faza it is the case of prosecution that he got recovered it from his house but prosecution is completely failed to prove exclusive possession or distinct knowledge of appellant over the said weapon which was lying open in his house.

27. Similarly the recoveries of 'Sotas' at the instances Sadiq and Allah Ditta are of no importance because those were not blood stained.

28. During the investigation Sher Muhammad, Fayyaz, Fateh Muhammad and Abid were declared innocent by the Investigating Officer and they were discharged by the learned Magistrate on 16.09.2015. This is an unchallenged position from prosecution's side as they never took any exception on such declaration. Prosecution itself produced the Investigating Officer, Latif Ullah SI (PW-9), who in his examination-in-chief, clearly asserted this fact. It means that even prosecution was in agreement with the opinion of said Investigating Officer. Therefore, the most important consideration before this Court is that discharge in particular of Sher Muhammad who was responsible for holding the leg of Tanvir Riaz and Pir Bakhsh who held Tanvir from his arm has again brought the case of the prosecution under clouds of heavy doubts.

29. Finally coming to the conduct of Tanvir Riaz, it is found that he was not enjoying good character. On 28.03.2015 Fazal Khan alias Faza (appellant) got registered FIR No. 180 at Police Station Luddan District Vehari against Tanvir Ahmad and Sajjad Hussain that at midnight for the purpose of commission of `Zina' with Robina Bibi they entered in the house, caught hold her and removed her clothes. Thereafter, on 15.05.2013 Bushra Bibi the real sister of Mst. Salma Bibi (PW-7)/the wife of deceased got recorded FIR No. 230 at Police Station Luddan District Vehari under sections 365-B/376, P.P.C. where she also alleged that Tanvir her brother-in-law was having an evil eye who abducted her and along with his co-accused also committed 'Zina bil Jabr' with her. In cross-examination on private witnesses the other criminal acts by Tanvir were also admitted. This fact too was not disputed that some of the accused nominated in this case including Fazal alias Faza were the witnesses against Tanvir in earlier mentioned cases. On the basis of these facts, the Court can safely arrive to a conclusion that deceased was having number of enemies in his account.

30. Taking into consideration the version of appellants, once prosecution evidence is disbelieved, it requires no discussion, analysis or appraisal on the strength of golden principles that this is the duty of prosecution to prove its case beyond reasonable doubt without taking any support from weakness from defence and in failure to do so, benefit of doubt shall go to accused not as a grace or concession but as a privilege.

31. Concluding the discussion made above this court finds that prosecution has badly failed to prove its case beyond reasonable doubt against appellants, therefore, Criminal Appeal (1218-J-2017) is allowed. Impugned judgment is set aside and all the appellants are acquitted from the case. They are in custody and they shall be released forthwith, if not required in any other case. The Criminal Revision (319 of 2017) is hereby dismissed. The case property shall be disposed of in the manners as directed by the learned trial court. JK/A-126/L Order accordingly.