' IJAZ AHMAD CHAUDHRY, J.---Through judgment we intend to dispose of Criminal Appeal No.175 of 2000 filed by Muhammad Amin alias Naeem appellant against judgment, dated 24-2-2000 passed by the learned Sessions Judge, Khanewal, whereby he was convicted under section 302, P.P.C. For committing Qatl-e-Amd of Imdad Hussain deceased and sentenced to death with direction for payment of compensation amounting to Rs.50,000 required under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default of payment thereof to further undergo R.I. For six months, and Murder Reference No.552 of 2000 sent by learned trial Court for confirmation of death sentence of Muhammad Amin alias Naeem appellant as both matters have arisen out of the same judgment.
2. First Information Report No.315 (Exh.PC) was recorded by Pith Hussian, Inspector/S.H.O. (P.W.9) on the statement of Maqbool Ahmad (P.W.3) real brother of Imdad Hussain deceased at 9-00 p.m. On 7-9-1995 under section 302, P.P.C. For an occurrence which had taken place on the same day at 7- 30 p.m in the house of Imdad Hussain deceased situate in Elahi Bakhsh Colony within the area of Chak No.130/15-L, falling within the jurisdiction of Police Station City Mianchannun, District Khanewal.
3. Succinctly the prosecution story narrated by Maqbool Ahmad (P.W.3) real brother of Imdad Hussain deceased was that Imdad Hussain deceased was employed in Police Department and posted on Police Security Duty at Mianchannu. On the day of occurrence at about 9/10 a.m.
Maqbool Ahmad complainant (P.W.3) along with Ghufran Ahmad (P.W.4) and Talib Hussian, Caste Gujjar resident of Chak No. 43/15-L, came to Mianchannu in order to purchase fertilizer and when they reached at T-Chowk Mianchannu on the cold drink shop of Sheikh Muhammad Yasin, Imadad Hussain deceased met them .There. He was reprimanding the appellant, namely, Naeem son of Nawab Caste Chohan, employee of Sheikh Yasin that Sheikh Naeem son of Sheikh Muhammad Yasin before going to Kuwait, had asked him to look after his shop and the appellant being employee was causing loss of the shop. In their presence Imdad Hussain deceased while using hot words also gave 2/3 slaps to Naeem appellant who became annoyed. Then Imadad Hussain deceased asked them to visit his house in the evening and he would arrange for fertilizer. At about 7-30 p.m. Maqbool Ahmad complainant (P.W.3) along with Ghufran Ahmad (P.W.4) and Talib Hussain on a motorcycle came to the house of the deceased situated in Elahi Bakhsh Colony and when they entered the house saw that Naeem son of Nawab while armed with raising `Churri' was giving blows in the abdomen of Imdad Hussain deceased who was lying on a cot. On seeing the witnesses the appellant succeeded in fleeing away while the `Churri' in the air and threatened that if anybody came near, would be treated in the same manner.
4. The motive behind the occurrence was stated to be that on the same day Imdad Hussain deceased while reprimanding Naeem appellant had given him 2/3 slaps as he was causing misappropriation in the shop of his friend Sheikh Muhammad Naeem and due to this reason, Naeem appellant committed the murder of Imdad Hussain deceased. Imdad Hussain in injured condition was taken to Civil Hospital, Mianchannun where he died.
5. On the same day the police visisted the hospital, prepared the necessary documents, sent the dead body to mortuary for autopsy. On the next day, Fida Hussain, Inspector/S.H.O. (P.W.9) visited the spot, took into possession blood-stained earth and cot etc. Muhammad Ameen alias Naeem appellant was arrested on 11-9-1995 and on 13-9-1995 he led to the recovery of 'churri' which was taken into possession vide recovery memo. (Exh. P-K.).
6. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court and the learned trial Court after supplying copies required under section 265-C, Cr.P.C. Framed the charge against the accused/ appellant which was denied by him and the claimed to be tried.
7. In order to prove the gum of the accused the prosecution produced as many 9 witnesses. The ocular account was furnished by Maqbool Ahmad (P.W.3) and Ghufran khmad (P.W.4) while Dr. Naeem Iqbal (P.W.6) had conducted the postmortem examination on the dead body of Imdad Hussain deceased and Fida Hussain, InspeCtor/S .H. O. (P .W .9) had carried out the investigation.
However, the remaining P.Ws. Are more of less of formal nature.
8. After close of the prosecution evidence, appellant was examined under section 342, Cr.P.C. Who controverted the allegations and professed innocence. In response to Q. No. 2, Muhammad Amin alias Naeem appellant replied as under:- "Imdad Hussain was fast friend of my Master/Employer. My master was away abroad. His father was very old. He could not run the shop property. Imdad Hussin was in the good books of my Master and his father. He had also influenced me. He was a Police-Man. Then 28 years old he was bachelor. I was just 15 years old. He has been frequenting the shop. He used to sit and chat with me not only at the shop, but also at other places including his house. He even used to call me to his house. On the ventful day too, he had carried me along on the pretext of a social service. Luring me with a lustful design, he forced me to submit to his bad desire. On the show and strength of a Churri, he forcibly de-nuded me of the dress and attempted to sodomise me by physical force, by threatening to stab me otherwise of by Churri held by him in his hand. Physically too weak to resist the strong, and trained police officer, I was overtaken. Succeeding in his lustful design while on my top and satisfied about my surrender, he kept the Churri aside and while heartedly indulged in the annal conjunction. Finding opportunity, I picked up the said Churri and hit the same in his belly, as a result of which, his control was released and I escaped from the scene of occurrence."
' Similarly, while replying Q. No.3, he stated as under:-- "I had left the Churri at the spot while escaping from the clutches of the sodomist. I had surrendered to the custody on my own at the police station on 11-9-1995. The recovery of Churri has been shown on 8-9-1995, this ante dated recovery is very strong to expose the recovery as a clear forgery, fabrication and plantation against me even without indicating the place of its recovery."
' To the question "why this case against you?" Muhammad Amin alias Naeem appellant replied as under:-- "I was a teenager with fair complextion and Imdad Hussain (deceased) was 28 years' old bachelor.
He has been running the drink shop and enjoying his society on various pretexts. Despite knowledge of the intimacy and equaintance, the local police pampered their own colleague and booked me and registered murder case by turning an absolutely deaf ear to my agitation and version. It is an express collusion of the complainant with the local police that just for the sake of a colleague, this false case has been lodged against me, a poor servant at a cold drink shop."
' However, in response to Q. No.7, he stated as under:-- "I come from a very poor family. My service at the cold drink shop and teen-age, and unstable maturity had been exploited by Imdad Hussain (deceased) who was a police officer and having great influence in the area. I was waylaid by his luring pretexts. He was culprit of commission of unnatural offence on my person. The offence is punishable with death. I had just acted in exercise of the right of defence to protect my honour and modesty. Contrary to fact and despite innocence, I have been falsely implicated by the real brother of the deceased in active connivance and collusion with the colleagues of the culprit of unnatural lust, I am innocent."
' However, the appellant had led no evidence in defence nor opted to be examined under section 340(2), Cr.P.C.
9. After hearing the learned counsel for the parties the learned trial Court passed the impugned judgment of conviction and sentence as stated above which is being assailed through this appeal.
10. Learned counsel for the appellant contends that both the eye-witnesses were residents of the place other than the place of occurrence and they failed to give any plausible explanation for their presence at the spot; that the appellant at the time of occurrence was aged about 15 years which is evident from the statement of the appellant recorded under section 342, Cr.P.C. On 28-1-2000 wherein his age was mentioned about 20 years and the same was not objected to by the prosecution, and that specific plea was raised by the appellant that he had acted to defend his modesty as the deceased was trying to commit unnatural lust with him and he was caused injuries with his own `Churri which was keeping by him to threaten the appellant for satisfying the lust.
According to the learned counsel none of the P.W. Was present at the spot and they were imported later on being close relatives of the deceased with the connivance of the Investigating Officer as the deceased was their colleague. It is lastly contended that the prosecution having failed to prove its case the defence plea raised by the appellant has to be accepted or rejected in toto and he is entitled to acquittal.
11. On the other hand, learned State counsel opposes the appeal on the ground that the witnesses had no grudge or enmity to. Falsely implicate the appellant in the present case and they sufficiently established their presence at the spot. According to the learned counsel nothing could be gained by the defence in its favour despite lengthy gross-examination on the P.Ws. It is further contended that Churri got recovered by.The appellant was reported to be stained with human blood, which provided independent corroboration to the ocular account and contradictions in the statements of the witnesses on minor points cannot be held sufficient to discard their evidence as the appellant himself has admitted commission of the crime though in a different manner yet he failed to substantiate the defence plea through any cogent evidence.
12. We have heard the arguments of both the learned counsel for the parties and also perused the record with due care and caution.
13. The pivotal question in this case is about presence of the eye-witnesses on the spot at the time of occurrence. Admittedly both the eye-witnesses were residents of Chak No.43/15-L, Tehsil Mianchannu, District Khanewal while the occurrence had taken place at about 7 1/2 p.m. In the house of Imdad Hussain deceased situated in Elahi Bakhsh Colony within the area of Chak No.130/15-L, falling within the jurisdiction of Police Station City Mianchannu District Khanewal. Both the eye-witnesses during cross-examination explained that they had come on a motorcycle to the place of occurrence in order to purchase fertilizer, but the distance between the place of occurrence and their residence i.e. Chak No.43/15-L, Tehsil Mianchannu District Khanewal was not asked by the learned defence counsel during cross-examination. However, P.W.4 Ghufran Ahmad stated that it took about 30/45 minutes on a motorcycle to reach the place of occurrence from their village and they did not stop in the way. It is confirmed that the place of occurrence was at a far-flung distance which could be covered on motorcycle within 30/45 minutes. They reached at the place of occurrence just at the time of commission of the occurrence. As such they can be declared chance witnesses and being close relatives of the deceased their statements have to be seen with utmost care and caution.
14. To establish the motive the P.Ws. Had given the reason that in the morning of the day of occurrence they had visited city Mianchannu for purchase of fertilizer and reached .At the cold drink shop owned by Sh. Naeem, a friend of Imdad Hussain deceased, brother of the complainant and said Naeem had gone to Kuwait for the last about 15 months. Imdad Hussain deceased was present there. According to P.W.3, Imdad Hussain deceased was admonishing the appellant who was a servant on the said shop that he was causing loss and gave him slaps, whereas P.W.4 stated that the deceased had admonished the appellant on the asking of Sheikh Yasin. P.W.3 Maqbool Ahmad stated that nobody was present at that time but according to P.W.4 Sheikh Yasin who is father of Sheikh Naeem was also present there and he used to collect the amount from the appellant who was running the shop in absence of Sheikh Naeem. Both the witnesses have contradicted each other regarding the motive. It is also not convincing story that when Sheikh Yasin father of Sh. Naeem was looking after the shop in his absence what was the reason for using hot words and slapping the appellant by the deceased who was serving Sheikh Yasin. Even otherwise, the Investigating Officer did not join Sheikh Muhammad Yasin or any other neighbouring shop-keeper during the investiggion in order to ascertain as to whether there was any truth in the motive part narrated by both the eye-witnesses. Statements of both the eye-witnesses are not confidence-inspiring. P.W.3 Maqbool Ahmad was a school teacher, but he had not stated during examination-in-chief that he had got any leave from the Headmaster and then he came to Mianchannu. The Headmaster was also not produced at the trial. In such circumstances, the prosecution has not succeeded in proving the motive.
15. Now we come to the ocular account furnished by P.W.3 Maqbool Ahmad and P.W.4 Ghufran Ahmad P W 3 Maqbool Ahmad is real brother of Imdad Hussain deceased while P.W. 4 Ghufran Ahmad is maternal cousin of the deceased. Both of them claimed to have visited the residence of the deceased situated in Elahi Bakhsh Colony Chak No.130/15-L, Tehsil Mianchannu District Khanewal as he had asked them to visit in the evening when he would arrange for the fertilizer.
According to the P.Ws. When they reached there, door of the house was closed and they opened the same. They found the appellant present there while armed with `Churri' and he was causing blows on the abdomen of the deceased lying at the cot. On seeing them the appellant ran away while threatening them. Admittedly they were the chance witnesses and their presence at the spot cannot be believed unless is proved through cogent reasons. The reason given by the P.Ws. For their presence at the place of occurrence at evening time was that in the morning they had come to city Mianchannu for purchase of fertilizer and the deceased, while present on the shop of Sheikh Naeem in the bazaar had asked them to come in the evening for the said purpose. The said story does not appeal to mind that when the three persons had come for a specific purpose after covering a lot of distance, which can be covered on the motorcycle within 35/40 minutes without break and the deceased, who though was a police constable yet was available in the bazaar for looking after the shop of his friend Sheikh Naeem during his absence, what had constrained him to ask the P.Ws. To go back and come again in the evening as the distance between their residence and city was not short. It appears that such a story was created to give reason for visiting the house of the deceased in the evening when the occurrence of his murder had taken place.
Thoughit was stated that as there was shortage of fertilizer, hence Imdad Hussain deceased had asked them to come in the evening yet no stand was taken in the F.I.R. That there was shortage of fertilizer and it appears to be afterthought story.
16. Though the prosecution had concealed the factum of receiving of injuries by the appellant during the incident at the trial, yet due to the mistake the Medico-legal report of Muhammad Amin alias Naeem appellant has been exhibited as Exhs.PH/1 and PH/2 along with the postmortem examination report annexed as Exh.PH,. According to which Muhammad Amin alias Naeem appellant aged about 18 years was examined on 11-9-1995, (the date of arrest of the appellant) and he was produced by the police for medical examination on the same day at about 10.45 a.m.
The doctor had found four incised wounds on the person of the appellant. Duration of the said injuries was about 4/5 days and according to the doctor these injuries were caused by sharp- edged weapon. All the injuries were kept under observation for clinical assessment, but the record does not show that any final report was obtained from the doctor regarding those injuries by the police. The appellant was medically examined by the Medical Superintendent, THQ Hospital, Mianchannu. This shows that the investigation of the present case was not conducted in a proper manner and the conduct of the Investigating Officer was not above the board.
17. From the perusal of the case diaries it has been established that at the time of arrest of appellant, P.W.9 Fida Hussain, Inspector/S.H.O. Had found the appellant in injured condition and he was got medically examined by the police. The duration of the injuries also proves that the same might have been caused during the occurrence.
' The eye-witnesses if were present there, they would have seen receiving of injuries by the appellant during the incident as well and at least when the appellant had fled away from near them while threatening, they would have seen the blood on the hands of the appellant and receipt of injuries by the appellant as both the witnesses claimed that four injuries were caused on the abdomen and wrist of the deceased by the appellant in their piesence, who reached there at the time of start of the incident. They failed to explain the injuries on the person of the appellant which shows that they were not present at the spot and had not seen the occurrence and that the incident had not taken place in the manner as narrated by both the eye-witnesses.
18. Moreover, both the witnesses have also contradicted each other on material points regarding taking of the deceased to hospital after the occurrence as according to P.W.3, the deceased was taken to hospital on a car, but he did not know owner of the car which was stopped outside the house with 2/3 minutes of the occurrence and while stating about the condition of the petitioner he was taken to the hospital in the said car. According to him after reaching the hospital he immediately brought the doctor, who declared that he was dead and they P.W.4 Ghufran Ahmad and Talib Hussain brought the cot from the hospital whereon the dead-body was put. On the other hand P.W.4 Ghufran Ahmad stated that P.W.3 Maqbool Ahmad had brought a taxi from the parking stand and on the said taxi the deceased was taken in an injured condition to hospital. According to him the doctor had given the opinion that the deceased was dead when he was still in the said taxi but the cot was already present there and he was laid on the said cot.
19. From the above facts and circumstances it appears that both the eyewitnesses who were residents of other village were called by the police later on and being close relatives of the deceased they were made witnesses while concocting story of their presence at the spot and the motive. We have already discussed that the conduct of the Investigating Officer was not above the board and it cannot be said that the F.I.R. Was lodged with promptitude and there was element of concoction and deliberation, which finds support from the factum that the recoveries from the spot were effected on the next day by the police as Fida Hussain, S.H.O./Inspector/ Investigating Officer P.W.9 claimed that there was no brightness and he could not recover the articles. On the other hand, P.W.4 Ghufran Ahmad has stated that blub was lit at the time of incident.
20. It is settled principle of law that the evidence of chance witnesses or interested one cannot be believed unless is corroborated by some independent piece of evidence, which is lacking In the present case. The motive part has already been disbelieved by us. Although P.W.7 Muhammad Ashraf and P.W.9 and Fida Hussain Investigating Officer stated that Churri was recovered on the pointation of the appellant after his arrest on 13-9-1995 through recovery memo. Exh.P.K. But perusal of the same shows that it was prepared on 8-9-1995, which is the date of effecting of other recoveries from the place of occurrence. It shows that the recovery of Churn was not effected in the manner narrated by the P.Ws 7 and 9, rather it supports the defence version that the appellant after causing the injuries had left the Churri at the place of occurrence and the same was taken therefrom by the police along with the IF other material.
21. We have also observed that the medical evidence is not in line with the ocular account.
According to the doctor (P.W.6) the deceased was clad in white Kameez and Shalwar, which were all stained with blood, but he did not state that whether there was any corresponding cut on the clothes of the deceased wearing at the time of occurrence and it also supports the defence version that the deceased at the time of his murder was indulged in the commission of sodomy with the appellant, who finding an opportunity had caused injuries to the deceased with Churri kept aside by the deceased.
22. In the present case we are of the view that the prosecution does not stand on its own legs and the presence of both the eye-witnesses at the spot to have seen the occurrence has been disbelieved by us. As such the prosecution has miserably failed to bring home guilt to the appellant. When the prosecution evidence is disbelieved, it is settled principle of law that the defence version taken by the accuse in statement under section 342, Cr.P.C. Has to be believed for disbelieved in toto and not in piecemeal to suit the prosecution case. The appellant has taken a specific stand, which for ready reference is reproduced here:-- "Imdad Hussain was fast friend of my Master/Employer. My master was way abroad. His father was very old. He could not run the shop properly. Imdad Hussain was in the good books of my master and his father. He had also influenced me. He was a Policeman. Then 28 years old he was bachelor.
I was just 15 years old. He has been frequenting the shop. He used to sit and chat with me not only at the shop, but also at other places including his house. He even used to call me to his house. On the eventful day too, he had carried me along on the pretext of a social service. Luring me with a lustful design, he forced me to submit to his bad desire. On the show and strength of a Churri, he forcibly de-nuded me of the dress and attempted to sodomise me by physical force, by threatening to stab me otherwise by the Churri held by him in his hand. Physically too weak to resist the strong, and trained police officer, I was overtaken. Succeeding in his lustful design while on my top and satisfied about my surrender, he kept the Churri aside and while heartedly indulged in the annal conjunction.
' Finding opportunity, I picked up the said Churri and hit the same in his belly, as a result of which, his control was released and I escaped from the scene of occurrence."
23. The defence taken by the appellant is borne out from the prosecution evidence itself. Both the eye-witnesses have stated that the appellant was a servant on a drink shop and in the absence of the original owner the deceased was watching the affairs of the said shop. In such circumstances, if the appellant, who was a young boy and the deceased was still bachelor in the age of 28 years, had visited the house of the deceased on his asking where he was forced to be subjected for sodomy by the appellant cannot be termed as an after thought story. The offence committed by the appellant is protected by fourth condition of section 100, P.P.C., which is reproduced as under:-- "100. When the right of private defence of the body extends to causing death. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-- First. Xxxxxxxxxx Secondly. Xxxxxxxxxx Thirdly. Xxxxxxxxxx Fourth. An assault with the intention of gratifying unnatural lust; Fifthly xxxxxxxxxx Sixthly. Xxxxxxxxxx"
' As such the appellant could not be convicted and sentenced under section 302(b), P. P. C .
24. For the foregoing reasons, this appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant, namely Muhammad Amin alias Naeem is acquitted of the charge. He shall be released from jail, forth with if is not required in any other case.
25. In view of the above Murder Reference No.552 of 2000 is replied in negative.
Appeal accented.