' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This appeal by leave of the Court is directed against the judgment, dated 22nd October, 1997 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby acquittal appeal filed by Muhammad Ashraf, father of deceased, Farooq Sohail has been dismissed and judgment of the trial Court, dated 23rd October, 1995 acquitting respondent Tahir alias Billoo has been maintained.
2. Precisely stating the facts of the case are that on 18th September, 1993 at 8-00 a.m. When Muhammad Ashraf Akhtar complainant/petitioner herein along with his son Irfan and Farooq Sohail (deceased) Was present in his house. He heard call-bell. The petitioner came out and saw Tahir alias Billoo accused/respondent present at the door, who told him that he wants to take Farooq Sohail (deceased) with him to his house to settle accounts of their business of joint Video- shop. Meanwhile Irfan and Farooq Sohail also came out of the house. The accused/respondent took the deceased with him. The complainant/petitioner and Irfan went to their shop situated in Nishtar. Bazar Rahimyar Khan. They returned home at 3-00 p.m. For lunch. The deceased did not return home till then, so the complainant in company of Irfan, his son and Ahmad Masood his son- in-law (P.W.) went to the house of accused/respondent situated in Abbasia Colony at 5-00 p.m.
Door of the house was found chained by them from inside but hue and cries were heard from inside the house. They went towards back side of the house and saw through crevice of the window that the accused/respondent was grappling with the deceased. Within their view the respondent threw the deceased on the ground and then shot at his head with a pistol. The P.Ws. Rushed towards the site where door of the house was located. The respondent, came out armed with a pistol and threatened them with life, and made his escape good from the scene. They went inside the house and found Farooq Sohail dead. Leaving others at the spot, the petitioner went for lodging report at police station situated.About 2 Kms. Away from the place of occurrence.
3. The Investigating Officer during investigations took into possession following incriminating articles from the place of incident:-
(i) Blood-stained earth. And (ii) One empty cartridge (Exh.P.E.).
' It may be noted that as per rough site plan (Exh.P.H.) prepared by P.W. Abdul Aziz, S.-I./S.H.O., above articles were recovered from Quarter No,43-D of Abbasia Colony, which was allotted either to Qazi Najamud-Din, father of respondent Tahir alias Billoo (accused) or in the name of his brother Zahid Farooq. It is equally important to point out at this stage that after having recorded statement of complainant P.W. Muhammad Ashraf (Exh.P.B.) P.W. Abdul Aziz, S.-I./S.H.O. Visited place of incident and recovered dead body of Farooq Sohail from his quarter. Injury report Exh.P.D./2 and inquest report Exh.P.D./1 were also prepared by him, inside the room of quarter. As far as these facts are concerned, there is .No dispute between the prosecution and defence version.
4. P.W. Dr, Bashir Ahmed on 19th September, 1.993 conducted post-mortem examination of dead body of Farooq Sohail (deceased) and noticed following injuries on his person:---
(1) A circular wound on the left parietal region of skull close to the top of skull size 1 c.m. x 1 c.m.
Burning of hair and skin on the wound. On probing wound going deep in the brain. Bleeding started on probing. There was fracture of skull adjacent to the wound. Fracture of skull was horizontal.
(2) There was blackening of left eye and on the back of neck.
' In his opinion the injuries were ante mortem and homicidal in nature caused by close fire. The injury No,1 caused extensive brain damage haemorrhage and shock which caused death by cardio-respiratory failure. The time between injuries and death was about 7 to 10 minutes and between death and post-mortem examination about 16 hours."
' He produced copy of the post-mortem examination report Exh.P.D. Perusal whereof indicates that a bullet was recovered from the deep muscular part of the left side of neck. P.W. Abdul Razzaq produced a parcel containing bullet which was secured vide recovery memo. Exh.P.A. Along with last-worn clothes of the deceased Exh.P.1 to P.3 (Shalwar, Shirt and handkerchief).
5. On 3rd October, 1993, P.W. 'Abdul Aziz S.I./S.H.O. Arrested Tahir alias Billoo. On the same day, latter led the police for recovery of .30 bore pistol from Quarter No,10/B, Abbasia Colony vide Exh.P. F.
6. On completion of investigation respondent was sent up to face trial before the Sessions Judge, Rahimyar Khan, who vide judgment, dated 23rd October, 1995, acquitted hint of the charge.
Acquittal appeal filed by the appellant before the learned High Court also failed vide impugned judgment, dated 22nd October, 1997.
7. Against the impugned judgment of the High Court, leave to appeal has been granted.
8. The prosecution based its case upon following pieces of evidence:---
(1) Ocular evidence.
(2) Recovery of incriminating articles.
(3) Medical evidence.
(4) Circumstantial evidence. (5), Motive.
9. Ocular testimony comprises of P.Ws. Muhammad Ashraf, Muhammad Irfan and Ahmad Masood.
They are closely related to dedesed Farooq Sohail being father (complainant)j, brother and brother-in-law respectively P.W. Muhammad Ashraf (complainant) has fully supported F.I.R.
Exh.P.B./I. According to his deposition on 18th September, 1993 at 8-00 a.m. He along with his sons Irfan and Farooq Sohail was present in his house. In response to the call bell he came out and saw Tahir accused, present in the Court, standing outside. Tahir expressed his wish to take Farooq Sohail deceased along with him to Video shop situated in Habib Colony in order to settle the accounts of the shop. It is stated that the shop was being run by Tahir accused and Farooq Sohail son of the complainant. Consequently the accused took his son Farooq Sohail to Abbasia Colony in presence of the complainant and Irfan another son of the complainant. Thereafter the complainant along with Irfan went to his shop situated .In Nishtar Bazar, Rahim Yar Khan. On the same day at 3-00 p.m. The complainant and his son came to the house for having meals and found that Farooq Sohail had not returned. On this the complainant along with Irfan and Ahmad Masood P.Ws. Went to the house of Tahir accused in Abbasia Colony in order to search Farooq Sohail. According to him they reached there at 5-00 p.m. And found the door of the house of the accused bolted from inside. Hue and cries, however; were coming from inside the house. The complainant along with P.Ws. Peeped through a window of a room and saw that Tahir accused and Farooq Sohail were fighting with each other. Tahir accused pushed Farooq Sohail 'on the ground and fired at him with pistol which hit on his head. The witness along with other P.Ws. Rushed towards the door of the house. In the meantime Tahir accused came outside the house while armed with pistol and threatened the P.Ws. With dire consequences if they tried to apprehend him.
The accused escaped from the spot by waiving the pistol in his hand. He further stated that he along with other P.Ws. Went inside the house and saw that Farooq Sohail was lying in a pool of blood and was fluttering. Soon after he succumbed to the injuries at the spot. P.W. Ahmed Masood and Muhammad Irfan, fully supported him. Although they were subjected to lengthy cross- examination but without extracting anything favorable to accused.
10. P.W. Dr. Muhammad Bashir produced medical evidence, relevant details of which have already been re-produced hereinabove.
11. The most important evidence possessed by the prosecution is of recovery of incriminating articles i,e, empty bullets P.5, taken into possession vide Exh.P.E. From inside Quarter No,43-D, Abbasia Colony where dead body.Of deceased was lying in presence of P.W. Muhammad Irfan, P.W.
Abdur- Razzaq produced bullet taken out from the body of deceased (Article P-4) handed over to him by the Doctor at the time of post-mortem of the dead body of deceased. P.W. Abdul Rahim produced pistol (article 6) taken into possession in his presence, vide Exh.P.F. At the pointation of respondent from Quarter No,10-B, situated in Abbasia Colony, Rahim Yar Khan.
' The incriminating articles i,e, empty bullet lead and pistol were sent in the Forensic Science Laboratory who vide Exh.P.G. Gave positive report which has been produced by P.W. Iftikhar Hussain I.O./S.H.O. Along with complete challan.
12. Accused/respondent in his statement under section 342, Cr.P.C. Denied the prosecution case and stated that "It is a false case. Complainant party entrapped him in this case to recover the illegal amount by harassm ent". He did not opt to make statement on oath, however adduced five defence witnesses.
13. According to D.W.1 on 18th September, 1993 he was posted as General Manager of Abbasia Textile Mills, Rahim Yar Khan. On that date at about 5 p.m. Mr. Fazal Hussain, Accountant of the Mills came to his residence along with Zakir Hussain and Qazi Najam-ud-Din. All these persons informed her that blood was coming out from Quarter No,43-D of Abbasia Colony, meanwhile Gul Jehan, Security Incharge also came and repeated the same story. He instructed them to open the door of the quarter by breaking open the lock. They complied with his orders and came back to him and informed that dead body of a young boy was lying in the quarter. The person who was dead in the quarter could not be identified by anyone of them. He immediately informed the police of Police Station, City C-Division, Rahim Yar Khan and directed the Security Officer to post a man as guard at the quarter till the arrival of police. He also directed the Security Incharge to call Manzoor Ahmad Nasi, Personnel Officer and Syed Fida Hussain Naqvi, Admn. Officer at the Gate to help the police on their arrival.
' In cross-examination he stated that Quarter No,43-D was allotted either to Najam-ud-Din or Zahid Parvaiz, father and brother of respondent respectively. He also stated that in connection with this murder case he neither appeared before police for recording of his statement nor he himself visited the place of incident. D.W. Fazal Hussain stated that on 18th September, 1993 he was sitting in the ground floor of the Mills when the children informed him that blood was coming out from Quarter No,43-D. It was after 4-30 p.m. He accompanied Zakir Hussain, Waving Master who was with him at that time to the quarter and found that blood was frozen in the channel coming out of the quarter.. He and Zakir. Hussain then went to the General Manager of the Mills and informed him about this fact. Meanwhile Gul Jehan, Security Inspector also reached the house of General Manager. He also narrated the same story. The General Manager directed them to unlock the quarter and see what was there. They got the lock broken and found that a .Dead body was lying inside. They closed the door and informed the General Manager, accordingly. The General Manager in return informed the police of C-Division. After meeting the General Manager they came back to Quarter No,43-D. Aftei the Azan of Maghrib the police reached the spot. At that time neither complainant Muhammad Ashraf Akhtar nor any P.Ws. Cited in the F.I.R. Were.Present. He denied in cross-examination that in his presence statements of P.Ws. Irfan Ashraf and Ahmed Masood were recorded. However, he admitted that Qazi Najam-ud-Din father of the accused is serving in Accounts Branch and he is still so.. D.Ws. Syed Zakir Hussain, Gul Jahan supported Fazal Hussain.
D.W. Manzoor Ahmed, Personnel Officer forwarded the report of incident received by him from Security Incharge which he produced as Exh.D.1/1.
14. Learned Sessions Judge in order to disbelieve the ocular testimony of the prosecution witnesses laid foundation on the evidence of the defence witnesses and concluded that it was a blind murder incident and the prosecution witnesses were not present at the spot at the time of occurrence and the F.I.R. Was recorded after stopping the Roznamcha'. The recovery of crime weapon i,e, pistol was effected from the house, which was not in exclusive possession of the respondent as the same was also occupied by father and other family members of the respondent-accused: Moreover, the recovery had been effected after 16 days of the occurrence, therefore it could not be believed that the accused could have kept the weapon of offence with him for such a long period so that when the police arrested him he could have produced the same immediately. The evidence of recovery witnesses i,e,. P.W.11 Abdul Rahim and P.W.13 Abdul Aziz, S.I./Investigating Officer is conflicting and contradictory as according to former he went to the place of recovery because he had to recover some money from there. He saw people and police standing at the quarter where, the recovery was effected and joined them, whereas latter has stated that recovery witnesses joined him: from the police station where they reached by themselves, therefore, the weapon of offence could not be connected with the commission of offence. As per column of inquest report Investigating Officer has to record the fact as to whether any article including arms or ammunition was found or not near the dead body. In this case the Investigating Officer specifically wrote 'nil'. This shows that no crime empty, as alleged by the prosecution was available near the dead body at that time. Besides this, Investigating Officer had handed over the parcel of crime empty to P.W. Ghulam Rasool, who was posted as 'Moharrir' at Police Station, City, C-Division on 19th September 1993, which according to the learned Judge was taken into possession on the same day otherwise the Investigating Officer should have handed over the same to Moharrir' on 18th September, 1993. It was also observed that incriminating articles were sent to Forensic Science Laboratory with unexplained delay of 10 days, therefore, these facts thus make the recovery of crime empty from the spot and that of pistol from the possession of the accused as doubtful and consequently the use ofabove weapon of offence by the accused remains a guess work. In respect of motive it is stated that it remained blurred.
' As a result of above discussion by the trial Court, respondent was acquitted of the charge. Learned High Court did not discuss points involved in the case and maintained the judgment of the Sessions Judge without assigning any cogent reason.
15. In view of above facts and circumstances, we are obliged to thoroughly scan the evidence, keeping in view the principles of safe administration of justice in criminal cases.
16. At the very outset, it may be noted that respondent Tahir alias Billoo and deceased Farooq Sohail had a joint business of video shop. According to P.W. Muhammad Ashraf on the day of incident respondent came to the farmer's house and asked him that he wanted to take Farooq Sohail (deceased) along with him to video shop situated in Habib Colony, in order to settle the accounts of that shop, therefore, deceased went with him to Abbasia Colony. During the cross- examination of the witness, these facts' were not specifically challenged, thus departure of deceased Farooq Sohail for Abbasia Colony in the company of respondent Tahir alias Billoo for the purpose of settling the accounts of the video shop being run jointly by them stands established. At this juncture, it may not be out of context to note that the house, where the dead body was ultimately found has been allotted either in favor of Qazi Najm-ud-Din or Zahid Pervaiz, father and brother of the respondent respectively, who are employees of the Mill. Recovery of the dead body of deceased, having injuries on its head, from Quarter No,43-D, situated in Abbasia Colony is also not disputed. In this behalf the statement of D.W. Abdul Rafiq Ansari may be referred who has not denied allotment of this quarter to the father or the brother of the respondent. He also stated that the same was not being used for dwelling purpose as the administration of the Mill has allotted another house to father or brother of respondent, being Quarter No,10-B situated in the same colony, from where on 3rd October 1993 recovery of Pistol Exh.P.6, vide recovery memo. Exh.P.F. Was effected. Not only the prosecution witnesses in unequivocal terms stated -that the dead body was recovered from Quarter No,43-D but also defence witnesses including D.W.1 Abdul Rafiq Ansari had also admitted this fact. Thus presence of the dead body of Farooq Sohail in quarter, in respect of which neither the complainant party nor the deceased had any control, leads to inescapable conclusion that the statement of P.W. Muhammad Ashraf is correct that respondent had taken the deceased along with him to the said quarter in the morning time at about 8-00 a.m. On the pretext of settling the accounts of the joint business of the video shop being run by them. With this background, version of P.W. Muhammad Ashraf seems to be correct that when on the day of incident at 3-00 p.m. He along with his son Irfan came to the house for having meals and found that Farooq Sohail had -not returned, he along with Irfan and Ahmad Masood P.Ws. Went to the house of Tahir accused in Abbasia Colony in order to search for his son Farooq Sohail. When they reached there at 5-00 p.m. He saw that the door of accused's house was bolted from inside and hue and cries were coming from that house. They peeped through a window of the room and saw that Tahir accused and his son Farooq Sohail were scuffling with each other. Tahir accused pushed Farooq Sohail on the ground and fired at him with pistol which hit on his head. They rushed towards the door of the house. In the meantime. Tahir accused came outside from his house while armed with pistol and threatened them of dire consequences, if they tried to apprehend him. Due to fear of death, they could not apprehend' the accused. The accused escaped- from the spot while waving the pistol in his hand. This version has fully been corroborated by P.Ws. Irfan and Ahmed Masood. Although they are closely related to the deceased but they have no personal motive or vengeance to involve the respondent in the commission of the offence.
17. It would be significant to examine the defence evidence at this stage as well to ascertain as to whether the prosecution witness i,e, P.W. ' Muhammad Ashraf has seen the incident or not? It may be observed that as far as D.W. Abdul Rafiq Ansari, General Manager of the Mill is concerned, as per his own version, he has not seen the incident himself. So far as D.Ws. Fazal Hussain, Syed Zakir Hussain, Gul Jehan and Manzoor Ahmed are concerned, they have stated before the Court that at the time when they had broken upon the lock of the quarter, none of the eye-witnesses was present there and subsequently when the police had reached there, they had seen them at the place of incident. P.W. Abdul Aziz, S.H.O. Has denied the.Suggestion that police reached at Quarter No,43-D on receiving information from D.W. Abdul Rafiq Ansari. As far as remaining D.Ws. i,e, Syed Zakir Hussain and Gul Jehan are concerned, their statements could have been considered correct if they had presented themselves for examination before the police during investigation of the case. It is evident that none of them volunteered to appear before the police for recording their statements and it seems that Qazi Najam-ud-Din, father of respondent-accused Tahir alias Billoo, who is an old employee of the Mill, as well as one of the office-bearers of the Union of the Mill, therefore, in order to absolve his son from the liability of murder of Tariq Sohail, they came forward to exclude the presence of the eye-witnesses. It may be noted that the factum of recovery of the dead body from-the quarter, allotted either to Qazi Najam-ud-Din or his son Zahid Pervaiz, cannot be brushed aside and for such reason the accused as well as defence witnesses owe an explanation i,e, as to why the dead body of Farooq Sohail was lying in the said quarter and in this manner, none else, except the persons, who have access to the quarter are responsible for commission of the murder of the deceased. Admittedly, Qazi Najam-ud-Din and Zahid Pervaiz, father and brother of respondent-accused had no concern with deceased Farooq Sohail, therefore, conclusion would be that it was respondent Tahir alias Billoo who brought the deceased Farooq Sohail to the quarter as per version of P.W. Muhammad Ashraf and committed his murder.
18. Thus for the above reason, the evidence furnished by the defence witnesses is not sufficient to outweigh the trustworthy and confidence-inspiring evidence of the ocular witness namely P.W.
Muhammad Ashraf. In addition to it, circumstantial evidence produced by the prosecution as well as ocular testimony and the medical evidence furnished by P.W. Dr. Muhammad Bashir also fully supports the prosecution witnesses. In this behalf it may be noted that the positive report of the Forensic Science Laboratory regarding pistol and the empty recovered from the place of occurrence had also furnished strong corroboration to the version of the prosecution witnesses, as the pallet recovered from the skull of the deceased and matched with the empty recovered from the place of incident, fired from the pistol, taken into possession by the police. Learned Sessions Judge, however, has discarded the recoveries, purely for hypertechnical reasons, without examining that the defence had never alleged manipulation in the recovery of these articles, therefore, mere delay of 10 days in dispatching the recovered articles to the Forensic Science Laboratory would not be fatal, in view of the peculiar facts and circumstances of the case.
Reference in this behalf can be made to the case of Muhammad Iqbal v. Muhammad Tahir and others PLD 1988 SC 361.
19. As far as motive is concerned, it has also come from the mouth of eye-witness P.W. Muhammad Ashraf, who had full knowledge about the joint business between Farooq Sohail deceased as well as respondent-accused, therefore, if his statement is believed to be correct qua the manner in which the incident had taken place inside the quarter then same is also to be accepted to prove motive.
20. It is well-settled principle of law that the. Criminal Courts are supposed to take into consideration the overall effect of the prosecution case in order to ascertain as to whether crime has been committed or not and unless the discrepancies, contradictions etc. Have impaired the intrinsic value of the prosecution evidence, the same is not liable to be discarded merely for technical reasons. Similarly if some delay has occasioned in lodging the F.I.R. That would also not be fatal in the circumstances because a young man had been killed in brutal manner and his dead body was found lying in the house to which the complainant Party had no access, therefore, if owing to some anguish and shock some time is consumed in lodging F.I.R., it cannot be considered fatal for prosecution case as it has been held in the case of Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC 211.
21. In view of overwhelming evidence available on record, we are of the opinion that the reasons found favor with the learned Sessions Judge for disbelieving the prosecution evidence are not tenable in the eyes of law. Since the material evidence available on record was disbelieved/discarded without assigning any cogent reasons; therefore, this Court is bound to rectify such errors in the interest of justice, in view of the judgment in the case of Sultan Ahmed v.
Ghulam Raza and others 1995 SCM R 664. The independent appreciation of evidence available on record produced by the prosecution as well as defence persuades us to hold that no other conclusion can be drawn except that respondent Tahir alias Billdo is responsible for the commission of murder of Farooq Sohail son of Muhammad Ashraf, in terms of section 302(b), P.P.C.
22. Now the next question for consideration would be as to in view of the facts and circumstances of the case, what sentence should be inflicted upon the respondent'? In this behalf, it may be observed that deceased Farooq Sohail remained with respondent from 8-00 a.m. Till evening when the complainant and two other witnesses saw deceased being murdered by him. It is not known as to what transpired between both of them just before the occurrence. The prosecution, however, could not offer any explanation in this behalf; therefore, we are of the opinion that sentence of life imprisonment to respondent Tahir alias Billoo with direction to pay compensation of Rs, Two lacs to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. Or in default whereof to undergo three years S.I., with the benefit of section 382-B, Cr.P.C. Would meet the ends of justice..
' Thus for the foregoing reasons, appeal is allowed, impugned judgment, dated 22nd October, 1997 along with the judgment of Sessions Judge, dated 23rd October, 1995 is set aside whereby respondent was acquitted of the charge as a result whereof Tahir alias Billoo is convicted and sentenced as mentioned hereinabove.
' Copy of this judgment be sent to Sessions Judge, Rahimyar Khan for ensuring arrest of respondent Tahir alias Billoo and remanding him to custody in. Order to serve out the sentence in above terms.