Muhammad Farrukh Mahmud, J.--Muhammad Asghar son of Allah Bakhsh-appellant was sent upto face trial in case FIR No, 290, registered at Police Station Saddar Ahmadpur East, on 1.9.1998, for offence under Section 302 PPC, for causing murder of. Muhammad Asghar son of Ghulam Qadir.
2. Vide judgment dated 23.5.2000, handed down by Syed Muhammad Munitaz Hussain Shah, Sessions Judge, Bahawalpur, the appellant was convicted under Section 302(b) PPC and was sentenced to death. Compensation amounting to Rs, 40,000/- was also imposed upon the appellant under Section 544-A Cr.P.C. In case of realization, the same was to be paid to the legal heirs of the deceased, while in default of payment thereof the appellant was to suffer six months R.I.
3. Through this appeal the appellant Muhammad Asghar has challenged his conviction and sentence. Murder Reference No, 42 of 2001 seeking confirmation of death sentence has also been placed before us. We propose to decide both ,these matters by this consolidated judgment.
4. On 24.8.1998 at 1.30 a.m. (during night) Haji Ghulam Qadir PW-1, father of the deceased, went to Police Station Saddar Ahmadpur East, alongwith dead body of his son Muhammad Asghar. At that time he was accompanied by Wazir Ahmad son of Kummon Khan and Muhammad Asghar- appellant. On the basis of a written application Ex. PA submitted by Haji Ghulam Qadir Rapt No, 20 Ex. PH was entered on 24.8.1998. After receipt of dead body Manzoor Ahmad, SI/PW-11, who had entered the Rapt, prepared injury statement (Ex. PE) and inquest report (Ex. PF) of the deceaed at Police Station. Thereafter he sent the dead body to the Hospital for post-mortem examination.
Manzoor Ahmad, SI/PW-11 registered the ease through formal FIR No, 290 of 1998 Ex. PI on 1.9.1988 for offence ,under Section 302 PPC, on the basis of written application earlier submitted by Haji Ghulam Qadir, According, to Manzoor Ahmad, SI, he registered the case after receipt of post- mortem report on 1.9.1998.
5. The prosecution story, as unfolded, in the FIR is that the complainant lived in Mouza Gullan Lar. He and his deceased son Muhammad Asghar were running a grocery store in a rented shop situated in Mouza Imamon Arain near Adda Zahirpir. They had occupied the shop 7/8 days prior to the occurrence. The complainant and his son used to run the shop. However, his son Muhammad Asghar used to remain at the shop day and night. Hafiz Tanvir, Nouni and Nanna on of Ghulam Muhammad Lohar, residents of Mohallah Sultanpura, were inimical towards the complainant and his son. On the fateful day when the complainant went to the shop, he was informed by Muhammad Asghar that Hafiz Tanvir and others had threatened him with dire consequences. At about Assar Prayer's time the complainant went back to his house. However, Muhammad Asghar- appellant and deceased remained at the shop. At about Maghrib rayer's time Muhammad Asghar-appellant went back to his house. At about 10/11:00 p.m. on 23.8.1998 Wazir Ahmad son of Kummo Khan came on a motorcycle and informed the complainant that the shop was open and us son Muhammad Asghar was lying therein unconscious. The complainant longwith Muhammad Asghar-appellant went to the shop and saw that Muhammad Asghar was lying unconscious, who lost his life within a shod time. The complainant, Muhammad Asghar-appellant and Wazir Ahmad removed the clothes of the deceased but they could not observe any sign of corture on the body.
However, the complainant suspected that it was not a atural death and Hafiz Tanvir, Nouni and Nanna sons of Ghulam Muhammad might have caused harm to Muhammad Asghar-deceased.
The complainant, Muhammad Asghar-appellant and Wazir Ahmad put the lead body in a Wagon and went to the Police Station. They reached there at about 1:30 a.m. on 24.8.1998 and the complainant submitted written complaint Ex. PA.
6. The appellant was arrested by Manzoor Ahmad, SI/PW-11 on 2.9.1998 and on 27.9.1998, while in police custody, he led to the recovery of lood-stained Danda (Stick) P-1, which was lying in a residential room. The same was taken into possession vide memo Ex. PB prepared by Manzoor Ahmad, SI and attested by Hafiz Irshad Ahmad PW-3 and one Qari, 4uhammad Hahim, who was not produced during trial.
7. After completion of investigation, Muhammad Asghar-appellant /as sent upto face trial. Charge was framed against him and as he denied the charge and claimed to be tried, the trial commenced.
8. During trial, the prosecution produced 13 witnesses in support of s case. Haji Ghulam Qadir/complainant appeared as PW-1. During trial he disowned the story narrated in the written complaint Ex.PA. According to in, it was Muhammad Asghar-appellant, who had drafted the complaint x.PA and the complainant had only thumb marked it He went on to say that his relatives Haji Faiz Bakhsh, Muhammad Hayat PW-6 and Ahmad akhsh PW-7 reached the Hospital and informed him (complainant) that 'on the preceding day i,e, 23.8.1998 during night at about 8/8:30 p.m., they had been from a distance of 11 feet in the light of an electric bulb that Muhammad Asghar-appellant, who was armed with a Danda, was inflicting injuries on the person of the deceased. He further stated that the accused scaped after arrival of the aforementioned PWs.
According to the complainant the witnesses also informed him that blood was oozing out from the face and head of the deceased and they had wiped the same. The complainant also disowned the story relating to the motive and stated that he had no dispute with Hafiz Tanvir Ahinad. According to him, the appellant committed the murder of his son in order to involve his son-in-law Hafiz Tanvir Ahmad with a design to abduct Mst. Shahnaz thereafter. Muhammad Hayat PW-6 and Ahmad Bakhsh PW-7 furnished the ocular account. Muhammad Hayat PW-6 is son-in-law of the brother of the complainant, while Ahmad Bakhsh is son of sister of Ghulam Qadir-complainant.
According to these PWs, on the fateful day they reached the scene of occurrence, per chance, at 8/8:30 p.m. and saw the appellant inflicting injuries to the deceased With Danda. After seeing the occurrence they boarded a bus and left for their houses and informed the complainant about the occurrence on the next day after knowing about the death of Muhammad Asghar. Dr. Mulazim Hussain, who had conducted the post-mortem examination of the deceased at about 11:30 a.m. on 24.8.1998, appeared as PW-8 and stated that he had observed two injuries on the person of the deceased. One was described as abrasion of about 3 cm x 1 cm on the right side of forehead, while the other was described as a lacerated wound of about 0.5 cm x muscle deep on the left cheek.
According to him, he had not observed any abnormality in scalp, skull and vertebrae. Similarly no abnormality was detected in the membrances, brain and spinal cord. According to his observation froth was coming out from nose and was present in mouth, pharynx and oesophagus. The injuries had not caused any fracture or dislocation. The Doctor also testified that different visceras were sent for chemical examination. However, according to the report of the Chemical Examiner dated 5.9.1998 Ex. PM, no poison was detected. According to this PW, after thorough post-mortem examination of the dead body he had come to the conclusion that Injuries Nos, 1 and 2 are ante- mortem, homicidal and have been caused by blunt weapon. However, he opined that the deceased lost his life within 3/4 hours after receipt of injuries. This witness was cross-examined and he had to admit that Injury No, 1 was abrasion, which was superficial injury involving the superficial layers of the skin. According to Doctor, Injury No, 1 had caused concussion of the brain, which resulted into death. He further explained that he has mentioned the cause of death as concussion-of brain after going through the report of the Chemical Examiner. This PW was recalled on 14.2.2000 and on that day he stated that. Manzoor Ahmad, SI/PW-11 had moved an application Ex. PJ seeking his opinion about the cause of death. On that application he had opined that the deceased lost his life due to head injury, which caused concussion of brain; and that injury No, 1 was sufficient to cause death in ordinary course of life. During cross-examination he was asked to explain as to why he did not give his opinion on 24.8.1998 when he conducted post-mortem examination. He replied that as police did not ask for his opinion, therefore, he with held the same.
Hafiz Irshad Ahmad PW-3 stated about the recovery of bloodstained Danda P-1 at the instance of the appellant. This PW is brother-in-law of Tanvir .Ahmad against whom suspicion was shown in the FIR. Manzoor Ahmad, SI, appeared as PW-11 and stated about the receipt of the complaint, registration of case and investigation. The rest of the witnesses are not important and need not be discussed. After placing on record the reports of Chemical Examiner Ex. PM & Ex. PN and that of Serologist Ex. PO (relating to bloodstained Danda), the prosecution closed its case.
9. In his statement recorded under Section 342 Cr.P.C. the appellant pleaded innocence and stated that he was involved in a false case due to party friction. The appellant did not appear as witness in his defence under Section 340(2) Cr.P.C. and closed his case after placing on record the following documents:--
(i) Copy of the order-sheet and statement of Mst. Shahnaz in the suit filed by her against Hafiz Tanvir Ahmad seeking dissolution of marriage Ex. DF.
(ii) Copy of Schedule of witnesses filed by Mst. Shahnaz Ex. DG.
(iii) Copy of order-sheet and statement of Tanvir Ahmad made in the suit for restitution of conjugal rights Ex. DH.
(iv) Copy of schedule of witnesses filed by Mst.. Shahnaz in the suit filed against her by Hafiz Tanvir Ahmad Ex. DI.
(v) Copy of affidavit (Mark-A) of Ghulam Qadir-complainant is also availble on the record of the case at page-40 of the paper book. This affidavit was filed in lieu of case FIR No, 374 of 1998 registered. at Police Station. City Ahmadpur Sharqia, for offence under Section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at the instance of Mst. Shahnaz daughter of Ghulam Qadir and wife of Hafiz Tanvir Ahmad. According to the contents of the affidavit, the case was false and her daughter had got the case registered under the influence of Hafiz Tanvir Ahmad and others.
(vi) Copy of application dated 28.8.1999 Mark-B filed by, Mst. Shahnaz against her husband Hafiz Tanvir Ahmad and others, is also available on the record of the case at page 42, of the paper-book.
According to the said application Hafiz Tanvir Ahmad and his companions had tried to forcibly abduct Mst. Shahnaz, who was rescued by the deceased and the appellant.
10. The learned counsel for the appellant has argued that the prosecution has miserably failed to prove its case against the appellant, as PW-6 and PW-7 were not only close relatives of the complainant but were also non-residents of the place of occurrence and were chance witnesses.
The learned counsel has further argued that their testimonies are not worthy of any credence and belied by the circumstantial as well as medical evidence. The learned counsel has also argued that the recovery was planted upon the appellant and was not supported by any reliable evidence.
The learned counsel has lastly argued that the prosecution has also failed to prove the motive against the appellant.
11.Conversely, the learned counsel for the complainant has argued that the appellant was a very clever person and wanted to have liaison with Mst. Shahnaz and for that reason he hatched a conspiracy and murdered. Muhammad Asghar brother of Mst. Shahnaz and thereafter tried to involve her husband Hafiz Tanvir Ahmad in the case as accused so that he could carry on the relationship with Mst. Shahnaz. In this regard he referred to the schedule of list of witnesses relating to the case filed by Mst. Shahnaz, wherein the name of the appellant has been mentioned as a witness. The learned counsel has further argued that it was a. case of single accused and PW-6 & PW-7 though related to the deceased and the complainant had no previous enmity or grudge against the appellant, so as to involve him in a false case. According to the learned counsel, the ocular account was supported by the medical evidence and corroborated by the factum of recovery of bloodstained Danda at the instance of the appellant. The learned counsel has lastly argued that the appellant was rightly convicted and sentenced to death, as no mitigating circumstance existed in his favour.
12.The learned counsel appearing on behalf of the State has chosen an easy course to adopt the line of arguments advanced by the learned counsel for the complainant.
13.We have heard the learned counsel for the parties at length and have scanned the entire record of the case. Muhammad Hayat PW-6 and Ahmad l3akhsh PW-7, close relatives of the complainant and the deceased, claimed to have seen the occurrence at about 8/8:30 p.m. on 23.8.1998. Admittedly they lived at a distance of three miles from the scene of occurrence. Both of them have given different reasons for being present at the time of occurrence. According to these witnesses, blood was oozing out from the injuries and the same was wiped by a piece of cloth.
According to them, within their presence the accused/appellant left the scene of occurrence. Both these witnesses have given no reason as to why they did not attend to Muhammad Asghar, who was their close relative and why they did not take him to his house but they left him in injured condition. Their conduct is not only inhuman but also unbelievable as according to these witnesses after seeing the occurrence they even did not bother to inform the father of the deceased about the incident rather they boarded a bus and left for their houses. They claimed that after knowing about the death of Muhammad Asghar on the next day, they informed the complainant about the incident, which they had seen. On that score the complainant had stated that the witnesses had reached while the dead body was lying in the Hospital and had informed him about the occurrence there. The complainant further stated that soon after receipt of information he informed the police, present in the Hospital. The circumstantial as well as documentary evidence belies this part of the statements of the PWs. The supplementary statement of the complainant and the statements of Muhammad Hayat and Ahmad Bakhsh Pws were recorded on 1.9.1998 i,e, nine days after the occurrence and eight days after submission of complaint Ex. PA. There is nothing on record to show as to why these PWs kept quiet for such a long time. It is also noteworthy that it was on 1.9.1998 that Manzoor Ahmad, SI/PW-11 sought opinion of the Doctor about the cause of death and it was on that day that the Doctor mentioned the cause of death on the application as concussion of brain by Injury No,
1. In case the witnesses would have informed the complainant about the incident on 24.8.1998, while the dead body of the deceased, was lying in the Hospital then the case could have been registered on the same day and the police would have not waited till 1.9.1998. According to these PWs, blood was oozing out from the injuries and the same was also wiped out but surprisingly the complainant, who is father of the deceased, could not see any sign of torture on the body, what to talk of blood. The Doctor, who examined the deceased, noticed that froth was coming out of the nose but did not notice any oozing of blood from the injuries. This story is; however, belied by the circumstantial evidence, as in C case blood had been oozing out from the injuries then at least the clothes worn by the deceased would be bloodstained. According to FIR, the dead body was lying on the floor in the shop but no blood was seen on the floor. It is pertinent to note that the inquest report Ex. PF, which was allegedly prepared by Manzoor Ahmad, SI/PW-11 at Police Station soon after receipt of the dead body, does not bear time of death in Column No,
3. It is also noteworthy that in Column No, 10 firstly it was mentioned that there was no mark on the dead body and subsequently two injuries were mentioned and a line was drawn on the observation that there was no mark on the dead body. Both the eye witnesses have contradicted each other on the point of reasons for their being present at the time of occurrence on the fateful day. Both these witnesses also made dishonest improvements and were duly confronted with their earlier statements.
14. The medical evidence also does not support the prosecution case. It appears that Doctor had either been playing in the hands of the complainant or in the hands of police, as during cross- examination he stated that he had opined in the light of report of the Chemical Examiner that injury No, 1 had caused concussion of brain, which resulted into death. The irony is that he-had given this opinion on 1.9.1998 on the application written by Manzoor Ahmad, SI/PW-11 dated 1.9.1998, while the report of the Chemical Examiner is dated 5.9.1998 and certainly was not available on 1.9.1998. He had described the fatal injury as abrasion and never opened the skull rather according to him he did not think necessary to open skull. In the circumstances, his opinion is based only on presumption and guess. The post-mortem report is dated 24.8.1998 and it bears the opinion/remarks of the Medical Officer in its Column No,
6. In the above noted remarks the Doctor has riot mentioned a word about the concussion of brain. Strangely enough Injury No, 2 has also been mentioned as homicidal though it was simple injury and was caused on the cheek. In case he would have mentioned the cause of death in the postmortem report then there was no necessity for the Investigating Officer to move application Ex. PJ on 1.9.1998 seeking opinion of the Doctor relating to the cause of death. It is also noteworthy that though post-mortem report is dated 24.8.1998 yet the case was not registered till 1.9.1998 and the reason advanced by the Investigating Officer is that by F then he had not received post-mortem report. Prima facie it appears that during this period the prosecution concocted the story. In the above noted circumstances, possibility of death due to unknown natural causes cannot be G ruled out.
15.As far as recovery of bloodstained Danda is concerned, to say the least, the same is not reliable, as occurrence took place on 23.8.1998 and the appellant was arrested on 22.9.1998 i,e, after a month of the occurrence. No sensible man would keep incriminating evidence intact for such a long time in his house, so as to hand over the same to the police as a souvenir. No independent witness of the locality has been produced to support the element of recovery.
16.Much has been said by the learned counsel for the complainant about the motive but his arguments are based only on hypotheses. According to the facts of the case, the motive was set against 'Hafiz Tanvir Ahmad and his brothers in the FIR. The complainant though disowned the motive during trial yet his statement is not worthy of any credence, as he made dishonest improvements in his statement. According to him, Muhammad Asghar-appellant jumped out of the Wagon prior to reaching Police Station. On the same point, the Investigating Officer has contradicted him. The learned counsel for the complainant has referred to the documents produced by the appellant during trial in order to show that there was some intimacy between Muhammad Asghar-appellant and Mst. Shahnaz. A perusal 'of Ex. DI, which is a schedule of list of witnesses submitted by Mst. Shahnaz in written statement in the suit filed against her by Hafiz Tanvir Ahmad reveals that Muhammad Asghar-appellant and her brother Muhammad Asghar both have been mentioned in the list of witnesses. It has already been mentioned above that Ghulam Qadir-complainant had filed an affidavit Mark-A on 19.8.1998 about four days prior to the occurrence in favour of the appellant. The arguments Advanced by the learned counsel for the complainant that the appellant murdered the brother of Mst. Shahnaz for the reason that he could subsequently involve Hafiz Tanvir Ahmad, husband of Mst. Shahnaz, in this case as a murderer is, to say the least, ridiculous. If there would have been any truth in the allegation that the appellant wanted to abduct Mst. Shahnaz and also wanted to have some liaison with her then in ordinary circumstances he would remove Hafiz Tanvir from the scene instead of her brother. No independent witness has been produced to support the story of motive, which was carved out after registration of case.
17.The upshot of the whole discussion is that we entertain no doubt in our minds that the prosecution has failed to prove its case against the appellant beyond doubt. Consequently, we allow this appeal, set aside the impugned judgment dated 23.5.2000 and acquit the appellant of all the charges. He would be set at liberty forthwith if not required in any other case.
18.Murder Reference is answered in the negative. Death sentence is not confirmed.